nebraska lawyer april 2011

Visa Options for International Athletes and Group EntertainersMark J. Curley

Counseling the Employer on the New Export Control Certification RequirementDustin J. Kessler

Defending Identity Theft in the “ICE” AgeBassel El-Kasaby

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The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law.

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Features

The

Nebraska LawyerOfficial Publication of the Nebraska State Bar Association • April 2011 • Vol. 14 No. 4

President’s Message - A Day In May.....................................................Robert F. Bartle

Visa Options for International Athletes and Group Entertainers....................................................... Mark J. Curley

Counseling the Employer on the New Export Control Certification Requirement for Non-Immigrant Worker Petitions...................................................Dustin J. Kessler

Defending Identity Theft in the “ICE” Age: A Tale of Two Cities................................................. Bassel El-Kasaby

E-Verify: The Good, The Bad and The Unresolved......................................................................Amy Peck

Robert F. Bartle

3

5

17 Law Practice Today Lessons Learned in the Legal Sector: Why Successful Firms Focus on Process Improvement by David Niles

19 Special Feature Practicing Law in Iraq by Major Christopher M. Ferdico

24 Nebraska Ethics Advisory Opinion No. 11-02

25 NSBA Calendar

27 Legal Community News

28 NCLE Calendar

29 MCLE News

29 Court News

31 Transitions

33 In Memoriam

34 Classified Ads

35 Legal Marketplace

37 2011 Public Service Awards Nomination Form

7

11

15

Find the Nebraska Lawyers Foundation

2010 Annual Report following page 20


The Nebraska LawyerThe Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

issue editorsEXECUTIVE COUNCIL

President: Robert F. Bartle, Lincoln President-Elect: Warren R. Whitted Jr., Omaha President-Elect Designate: Marsha E. Fangmeyer, Kearney House of Delegates Chair: G. Michael Fenner, Omaha House of Delegates Chair-Elect: James E. Gordon, Lincoln Past President: Michael F. Kinney, Omaha First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: Nancy A. Svoboda, Omaha Third District Rep.: Thomas M. Maul, Columbus Fourth District Rep.: Jill Robb Ackerman, Omaha Fifth District Rep.: Robert M. Schafer, Beatrice Sixth District Rep.: R. Kevin O’Donnell, Ogallala

ABA State Delegate: Amie C. Martinez, Lincoln ABA Association Delegate: Daniel E. Fullner, Madison

Bar Foundation President: Kile W. Johnson, Lincoln NLTAF: Jerald L. Ostdiek, Scottsbluff Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Jarrod P. Crouse, Lincoln NCLE Section Chair: Susan J. Spahn, Omaha

Executive Director: Jane L. Schoenike, Lincoln

EDITORIAL BOARDChair: James C. Bocott, North Platte

Executive Council Liaison: Warren R. Whitted Jr., Omaha

Executive Editor: Kathryn A. Bellman [email protected]

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(800) 927-0117 • www.nebar.com

Thomas F. Ackley, OmahaKelly L. Anders, OmahaP. Brian Bartels, OmahaM. Therese Bollerup, OmahaElizabeth S. Borchers, OmahaThalia L. Downing Carroll, OmahaKent E. Endacott, LincolnChristopher M. Ferdico, LincolnVanessa J. Gorden, LincolnJoseph W. Grant, OmahaCarla Heathershaw Risko, OmahaAndrea M. Jahn, OmahaBrandy R. Johnson, Lincoln

Jeanelle R. Lust, LincolnSandra L. Maass, OmahaAmie C. Martinez, LincolnMichael W. Meister, ScottsbluffGregory B. Minter, OmahaLuke H. Paladino, OmahaDavid J. Partsch, Nebraska CityEdward F. Pohren, OmahaKathleen Koenig Rockey, NorfolkMonte L Schatz, OmahaRonald J. Sedlacek, LincolnColleen E. Timm, OmahaJoseph C. Vitek, Chicago, IL

Dustin J. Kessler

Dustin J. Kessler joined the Omaha Law Firm of Fitzgerald, Schorr, Barmettler & Brennan, PC, LLO, after graduating with distinction from the University of Nebraska College of Law. Dustin currently serves as the Chair of the Immigration Law Committee of the Nebraska State Bar Association. Dustin is also a member of the American Immigration Lawyers Association and is a past officer of the Iowa/Nebraska Chapter of the Association. Dustin’s Immigration Law practice focuses primarily on all aspects of employment and family based nonimmigrant and immigrant visa pro-cessing and naturalization.

Gregory B. Minter

Gregory B. Minter has been practicing law with Fitzgerald, Schorr, Barmettler and Brennan for 41 years. He holds degrees from the University of Omaha and Creighton University. Minter taught Federal and State Securities Regulation at Creighton University School of Law and taught securities regulation at the University of Nebraska College of Law. He has been Secretary and a member of the Executive Board of the Iowa-Nebraska chapter of the American Immigration Lawyers Association.

James C. Bocott

James C. Bocott is a graduate of the University of Nebraska College of Law and is a principal of the Law Office of James C. Bocott, PC LLO. James practices in the areas of: Debtor/Creditor Bankruptcy; Civil Litigation; Personal Injury; Workers Compensation; and Domestic Relations matters. James is a member of the Nebraska Association of Trial Attorneys and the National Association of Consumer Bankruptcy Attorneys.


In Rome, it was called Floralia; the Celts named it Beltane, but since medieval times, we’ve known it as May Day, a cel-ebration of the coming of summer complete with Maypoles; or in the case of your children, occasioned by May baskets. In England, it became a bank holiday in 1978 to coincide with International Workers Day, but in the United States, we mark the event as Law Day. First established in 1958 by President Eisenhower, Congress issued a joint resolution designating May 1st as the official date for celebrating Law Day in 1961. The golden anniversary occurs this year.

The 2011 Law Day theme, “The Legacy of John Adams: From Boston to Guantanamo” gives us an opportunity to con-sider the role of lawyers in defending the rights of the accused, and to renew our understanding and appreciation of the fun-damental American principle of the rule of law. Adams was a perfect choice.

John Adams became our first lawyer-president in 1797. Wedged between two more popular two-term Virginians, Washington and Jefferson, this Boston lawyer served only a single term in the White House. However, his legacy as a law-yer was well established before he became President.

On June 7, 1776, Adams seconded the resolution of inde-pendence introduced in the Continental Congress by Richard Henry Lee, providing that the colonies ought to be free and independent states. Adams was appointed to a commit-tee including Thomas Jefferson, Benjamin Franklin, Robert Livingston, and Roger Sherman to draft a declaration of inde-pendence. Although that document was written primarily by Jefferson, Adams occupied the foremost place in the debate on its adoption.

Adams published a pamphlet, “Thoughts on Government”, in 1776, noting that the most valuable part of the British Constitution was the provision insuring a republic as “an empire of laws and not of men.” That notion, that we are a govern-ment of laws, not men, was famously quoted in the landmark decision of the Supreme Court in Marbury v. Madison in 1803. However, Law Day focuses on the legacy of John Adams with respect to an event occurring even earlier, in the spring of 1770.

On the evening of March 5, 1770, British soldiers fired into a crowd of protestors who had gathered near the Custom House in Boston. The soldiers were under the command of Captain Thomas Preston. Five colonists died, including Crispus Attucks, a man of both Native American and African descent. The term massacre quickly became associated with the event, while others characterized the event as a riot, all depend-ing upon one’s point of view of what happened and why. Some accused the soldiers of firing randomly; others argued the sol-diers were provoked with insults, snowballs, and other objects thrown by the crowd of American protestors.

The British soldiers involved were arrested on criminal charges. Not surprisingly, these soldiers had trouble finding legal counsel to represent them. Adams was asked to defend, and he accepted. Adams agreed to take on the cases because he firmly believed Captain Preston and the British soldiers deserved an effective legal defense. Preston’s trial began in October, 1770. Ably defended by Adams, the jury acquit-ted the British captain. The trial of the eight soldiers under Preston’s command began in December. Adams argued that the soldiers fired in self-defense, and that the protestors con-

president’s page

Robert F. Bartle

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A Day In May


stituted an unruly mob. The jury acquitted six of the soldiers and found the other two, who were proven to have fired their weapons, guilty of only manslaughter. An amazing result under the circumstances of place and time.

What is significant about John Adams is not that he proved to be a brilliant trial lawyer. What is significant, in the context of today’s politics, is to recognize that Adams was elected to the First and Second Continental Congress by his fellow citizens of Massachusetts in 1774 and again in 1775, notwithstanding his role in defending the British soldiers.

While in preparation for trial, John Adams was elected to the Massachusetts General Court (the Colonial legislature) in June, 1770. Clearly, fellow Bostonians recognized that his principled defense of an unpopular client did not disqualify John Adams from public service. I would like to believe that the voting public would be just as discerning today. I would like to believe that a fellow lawyer who successfully defended a Guantanamo prisoner could thereafter run for public office without being branded as disloyal or un-American. I do believe that a fully-informed public appreciates that our civil rights and individual freedoms are only as safe as they are assured to the least among us. But there’s the rub. It is a matter of fully and fairly educating the public of our constitutional protec-tions, such as the right of an accused to have effective counsel at trial. That is the message we must promote as we celebrate May Day.

In March of last year, nineteen prominent lawyers signed an open letter supporting the role of American lawyers in defending Guantanamo detainees by declaring “the American tradition of zealous representation of unpopular clients is at least as old as John Adams’ representation of the British soldiers charged in the Boston Massacre.” Supreme Court rul-

ings made possible effective legal representation of those held in Guantanamo. While initially, lawyers were unable to visit or talk to the detainees, presently hundreds of lawyers have committed their time, principally on a pro bono basis, to the detainees’ legal defense. I suggest we honor their service on this May Day in the spirit of John Adams. suggest that such service, especially on a voluntary basis, is every bit as honorable as those who wear the American uniform in military engagements over-seas. Both armies, military and civilian, promote the precept of America’s commitment to the rule of law.

Events honoring the rule of law begin later this month with ABA day activities in Washington, D.C. on April 12th to April 14th. Bar leaders from throughout the nation converge on the Capitol to educate our elected officials about the role of lawyers in a free society. We will lobby our Congressional delegation on the issues impacting our system of justice. If there is a message you wish conveyed to your Representatives and Senators in Washington, D.C., do not hesitate to contact me. Consider supporting a Law Day event in your community. And when May 1st arrives, pause for a moment to celebrate the legacy of John Adams, not as a politician; not even as President, but simply as a lawyer who recognized his duty and did it very ably, very well.

PRESIDENT’S MESSAGE

Robert F. Bartle, PresidentTelephone: (402) 476-2847

Fax: (402) 476-2853E-Mail: [email protected]

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What do Dirk Nowitzki (Dallas Mavericks), Johan Santana (New York Mets), Alex Ovechkin (Washington Capitals), Vijay Singh (golf) and Roger Federer (tennis) all have in com-mon? They are all foreign-born professional athletes who have played their respective sports in the U.S. for many years. And they have been paid handsomely for their performances.

According to Sports Illustrated, in 2008, the 20 highest-paid foreign athletes were paid a combined $581 million with David Beckham (Los Angeles Galaxy) at the top of the list with $48.2 million. The list included nine soccer players, three baseball players, three Formula-1 racers, and two tennis play-ers. Not bad work if you can find it!

So, as foreign-born people who are earning a living in the U.S., are they considered “foreign workers?” These are not the people who generally come to mind when we hear about for-eign workers, but they also need visas to enter and work in the U.S. just as other foreign-born workers in other occupations. The only difference is the type of visa issued to them.

The Immigration and Nationality Act of 1952, (INA) as amended, authorizes temporary visas to enter the U.S. for many different activities. Each visa is generally referenced by the section of the INA which authorizes it. For example, §101(a)(15)(B) of the INA authorizes B visas for visitors and §101(a)(15)(F) authorizes F visas for foreign students. Not surprisingly, P visas for athletes and group entertainers are authorized by §101(a)(15)(P) of the INA. Petitions for visas are filed with U.S. Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security, or at a U.S. consulate abroad.

Visas for foreign athletes and entertainment groups are reserved for the best in their field. P-1A visas are available for 1) persons who perform as athletes, individually or as part of a group or team, at “an internationally recognized level of per-formance”; 2) athletes or coaches who are part of an amateur team or franchise located in the U.S. as long as the team is part of an international league with 15 or more amateur teams and participating would make the athlete ineligible for U.S. schol-arships under NCAA rules; and 3) a professional or amateur ice skater performing alone or as part of a group theatrical production. INA §214(c)(4)(A)(i) Individual entertainers are not eligible for P visas, but could qualify for an O visa.

“Internationally recognized” is defined in the federal regu-lations as “having a high level of achievement in a field evi-denced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achieve-ment is renowned, leading, or well-known in more than one country.” 8 CFR §214.2(p)(3) So, this visa is not for bench warmers. To establish international recognition, an athlete or team must have a contract with a major U.S. sports team or league and provide two of the following:

feature article

Visa Options for International Athletes and Group Entertainers

by Mark J. Curley

Mark J. CurleyMark J. Curley is the founder of Curley Immigration Law Office located in South Omaha. His prac-tice is devoted exclusively to immi-gration-related issues for employ-ers, families, and refugees. Mark is currently the Chair of the Iowa/Nebraska Chapter of the American Immigration Lawyers Association and an adjunct faculty member in the Paralegal Studies Program at the College of St. Mary.

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1. Evidence of participating to a significant degree with a major U.S. sports team in a prior season;

2. Evidence of competing internationally with a national team;

3. Evidence of participating to a significant degree with a U.S. college or university team in intercol-legiate competition in a prior season;

4. A written statement from an official of the governing body of the sports which describes how the athlete or team are recognized internationally;

5. A written recommendation from a member of the sports media or an expert in the sport which describes how the athlete or team are recognized internationally;

6. Evidence of an international individual or team ranking; or

7. Evidence of a significant award or honor in the sport.

8 CFR §214.2(p)(4)(ii)(B)(2)

In lieu of submitting the evidence listed above, an athlete can simply show that she or he is a “professional” athlete. The difference between pros and amateurs is that pros are good enough to get paid, right? Not so in the world of immigration. Under federal immigration regulations, to be classified as a “professional athlete”, one must be employed by a team which is a member of a governing association of six or more profes-sional teams with combined annual revenue of $10 million or more, or any minor league team affiliated with the association. INA §204(i)(2)(A) If the association only has five teams, but all other criteria are satisfied, then the athlete does not meet the definition of “professional athlete” under the INA and will need to submit two of the seven types of evidence listed above.

An additional requirement for P visa petitions is an advisory opinion from a labor organization with expertise in the specific field of athletics or entertainment which describes the nature of the work and the athlete’s qualifications. 8 CFR §214.2(p)(7) Most labor organizations will issue the advisory opinion fairly quickly, but they may also charge a fee for this service. The advisory opinion is not binding on the government, which means that a government employee could supplant the opinion of an expert in the field with his or her own amateur opinion. If a petition is submitted without an advisory opinion, USCIS will send a copy of the petition to an appropriate labor orga-nization and request an opinion. If an opinion is not received within 5 days, or if an appropriate labor organization does not exist, USCIS will adjudicate the petition based on the evidence in the record. This method is not advised if the visa is needed urgently as petitioners have no control over when USCIS sends the request for the advisory opinion.

In general, a P visa can be issued for up to 5 years and can be renewed once. In 2009, after pressure from sports leagues,

USCIS issued a new policy memo which clarified that foreign athletes are not subject to a lifetime limit of ten years as long as they leave after ten years to get a new visa in their home countries. Since many foreign athletes return to their home countries in the off-season, this policy change effectively means that there is no limit for professional athletes.

In 2010, the Omaha Vipers, a new professional indoor soc-cer team, was established in Omaha to compete in the Major Indoor Soccer League (MISL), an international league of five teams. Soccer is generally more popular around the world than in the U.S., especially in Latin American countries. The Vipers were fortunate to recruit eight foreign soccer players plus an Argentine coach, all of whom needed P visas to com-pete. One of the MISL teams, La Raza of Monterrey, Mexico, was inactive during the 2010-11 season due to Hurricane Alex which devastated the city of Monterrey with flood water last summer. Several of the La Raza players were signed with the Omaha Vipers and traveled to Omaha last fall.

A foreign-born entertainer can also apply for a P-1B visa to perform in the U.S. if he or she “performs with or is an integral and essential part of the performance of an entertain-ment group” which has been recognized internationally for a sustained period of time. Seventy-five percent of the enter-tainers must have been a part of the group for at least one year with the exception of circus personnel. It is unclear why circus personnel are exempt from this rule, but they must have power-ful lobbyists!

The P-2 visa is for artists or entertainers who are participat-ing in a cultural exchange program and the P-3 visa is for art-ists or entertainers who are participating in a culturally unique program that would further the understanding of his or her art form. Dependents can travel to the U.S. with P-4 visas and remain in the U.S. for the same period of time as the principal applicant.

Not all athletes and entertainers are paid for their services and some are paid by a source outside the U.S. Mexican soccer teams, for example, can travel to the U.S. to complete against U.S. teams with B visitor visas since they are paid from a foreign source. Venezuelan baseball players signed by a U.S. team, however, will need P visas since they will be working and getting paid in the U.S.

There are many other types of temporary visas which allow foreign-born people to live and work in the U.S. You may come into contact with these people every day without knowing it. The criteria for nonimmigrant visas are strictly defined by statute and regulation so visitors have to find the right “pigeon hole” to match their purpose for traveling to the U.S. This sys-tem makes it difficult for many foreign-born people to visit or work in the U.S. The P visa is only one of many pigeon holes and only athletes and entertainment groups will fit in it.

VISA OPTIONS


Lawyers who represent businesses and other entities such as colleges and universities that employ foreign nationals must be aware of the new certification requirement found in the updated (Revised 01/19/2011) Form I-129 Petition for a Nonimmigrant Worker. The Form I-129 is the petition form used by employers petitioning the United States Citizenship and Immigration Services (“USCIS”) to request a nonim-migrant visa status on behalf of a prospective foreign national employee. The certification is now mandatory for any employ-ers petitioning for H-1B, H-1B1 Chile/Singapore, L-1 and O-1 status for prospective foreign national employees. These visa categories are the most popular visa types for professionals and highly skilled foreign national employees.

The CertificationBeginning on February 20, 2011, the USCIS now requires

that all employers who submit a Petition for a Nonimmigrant Worker certify under penalty of perjury their compliance with U.S. export control laws and regulations.

Specifically, Part 6 of the new version of Form I-129 states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

□ A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or

□ A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the peti-tioner has received the required license or other authorization to release it to the beneficiary.

The petitioner must check one of the above boxes on the form.

As a general rule, a license is required for the release of technology or software to a foreign national if the export or transfer of that technology or software would require a license for export to the foreign person’s country of citizenship. Making an inaccurate certification could expose employers to liability for making false statements to the United States government, along with possible liability for any underlying violations.

feature article

Counseling the Employer on the New Export Control Certification Requirement for Non-Immigrant Worker Petitions

by Dustin J. Kessler

Dustin J. KesslerDustin J. Kessler joined the Omaha Law Firm of Fitzgerald, Schorr, Barmettler & Brennan, PC, LLO, after graduating with distinction from the University of Nebraska College of Law. Dustin currently serves as the Chair of the Immigration Law Committee of the Nebraska State Bar Association. Dustin is also a member of the American Immigration Lawyers Association and is a past officer

of the Iowa/Nebraska Chapter of the Association. Dustin’s Immigration Law practice focuses primarily on all aspects of employment and family based nonimmigrant and immigrant visa processing and naturalization.

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The Applicable Export Control Regulations

The Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”) require companies and individuals to seek and receive authorization in the form of a license from the U.S. Government before releasing controlled “technology” or “technical data” to foreign nationals in the United States. “Technology” and “technical data” that are controlled for release to foreign nationals are identified on the EAR’s Commerce Control List (“CCL”) and the ITAR’s U.S. Munitions List (“USML”) respectively. The Department of Commerce Bureau of Industry and Security (“BIS”) admin-isters the EAR and The Department of State Directorate of Defense Trade Controls (“DDTC”) administers the ITAR.

Generally the EAR covers all commercial items that have been determined to be “dual-use” items, or items that could potentially be used for both commercial and military or proliferation purposes. The ITAR controls items specifically designed, developed, configured, adapted or modified for a defense, intelligence or military-related purpose. The EAR uses the term “technology” to refer to information for the “development,” “production” or “use” of these dual-use prod-ucts or software. Examples of technology include, but are not limited to, blueprints, manuals, drawings, instructions, and plans. It also covers information that may be relayed in employ-ee technical meetings, emails, and other common interactions within a U.S. company. The ITAR defines “technical data” to include “Information . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” and includes “information in the form of blueprints, drawings, photographs, plans, instructions or documentation.”

It is generally understood that an export occurs when an item or related technology / technical data is physically trans-ferred outside the United States. Less well known is what is referred to as the “deemed export” rule. The EAR’s deemed export rule covers the release of technology or technical data to a foreign national within the United States and considers a release of such information to be an “export” of that technology or technical data to the country of citizenship of the foreign national. Consequently, any such unauthorized release to a foreign national within the United States constitutes an export violation. While the ITAR does not use the phrase “deemed exports,” it does contain a comparable concept that will deem an export to have occurred when “technical data” is disclosed (including oral or visual disclosure) or transferred to a foreign national in the United States. The term “release” is broadly defined and can occur through a variety of means, includ-ing visual inspection of a product, instruction in its design, use or maintenance, access to computer networks, and verbal

exchanges. A “foreign national” for these purposes is anyone who is not a U.S. citizen, a permanent resident, or an otherwise protected individual. Anyone holding a temporary visa status is treated as a foreign national for these purposes.

Although the EAR and ITAR are not new, this will likely be the first time that an employer who submits a visa petition for a nonimmigrant worker will have to consider the applica-tion of these export regulations to the immigration process. The application of these export compliance regulations to the nonimmigrant visa petitioning process is the result of studies conducted by the U.S. Government Accountability Office (“GAO”). The GAO has identified a disparity between the number of export license applications that are being filed and the number of nonimmigrant visa petitions that are being filed. To address the disparity, the GAO recommended the changes to the I-129 petition which will force petitioning companies to think about export control and the information and data being released to foreign national employees.

Determining Whether a License is Required

Under the EAR

Under the EAR, a relatively small percentage of U.S. exports actually require a license. The company or potential exporter must make a determination whether a particular export requires a license. In making that determination, the exporter will need to consider four questions: What are you exporting? What country are you exporting to? Who will receive the item? What will the item be used for?

What are you exporting?

This first question involves determining whether the item being exported has a specific Export Control Classification Number (“ECCN”). The ECCN is an alpha-numeric code that describes the item and indicates licensing requirements. All ECCNs are listed in the Commerce Control List (“CCL”) which is found in Supplement No. 1 to Part 774 of the EAR. The CCL is divided into ten broad categories, and each cat-egory is further subdivided into five product groups. If up to the task, a company may classify the item on its own, check with the manufacturer, or submit a classification request to the BIS to determine the ECCN for it.

What country are you exporting to?

Restrictions on exports vary from country to country. Once the item has been classified under the CCL, the next step is to determine whether an export license is needed based on the “reasons for control” and the country of ultimate des-tination, which is deemed to be the country of citizenship of the particular foreign national in question. At this stage the ECCN is compared to the Commerce Country Chart found

NEW EXPORT CONTROL CERTIFICATION REqUIREMENT



Under the ITAR

The determination is a bit more straightforward when dealing with items identified in the ITAR. The “technical data” covered under the ITAR is found in the U.S. Munitions List (“USML”) located in Part 121 of the ITAR. Generally, a license must be obtained if the particular item in question is found on the USML. “Technical data” as defined in the ITAR includes “Information . . . which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles” and includes “information in the form of blueprints, draw-ings, photographs, plans, instructions or documentation.” If the item is found on the USML a license must be requested and obtained from the DDTC prior to its release to a foreign national in the U.S. In order to obtain a license, the exporter must register with the DDTC through an online application on its website at www.pmddtc.state.gov. Once an exporter is registered, it may then apply online for the export license through a program called “D-Trade” which is also accessible through the DDTC website.

Where to Get AssistanceA good starting point for information on export licensing

requirements and the regulations is to take advantage of online training and seminars accessible through the BIS and DDTC websites mentioned above. Further information about the EAR and deemed exports can be found at www.bis.doc.gov/deemedexports. Further information about the ITAR and how to apply for an export license from DDTC can and pertaining to the release of controlled technical data found at http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.

ConclusionThe addition of this certification on the revised Form I-129

will make export control a part of the immigration petitioning process for the first time. For employers with well-established export control compliance programs, it is recommended that they review existing procedures to ensure proper coordina-tion with their immigration petitioning process. For other employers, the new certification will require a more significant enhancement to their existing process for export control com-pliance, or in some instances the implementation of such a pro-gram. If it is determined that a license is required and one is not timely obtained, the employer may be forced to delay the start date of the proposed employment, rescind the offer or change the duties of the job, which may require a new visa petition.

To protect your clients, and yourself, you should make it standard practice to alert clients to the new certification requirement and relevant instructions on all I-129 petitions you are assisting with. You should take steps to ensure that the

in Supplement No. 1 to Part 738 of the EAR. If the Country Chart indicates a match between the item and the country of destination, a license will be required unless an exception is available. License Exceptions and the conditions on their use are set forth in Part 740 of the EAR. Although a relatively small percentage of all U.S. exports require a license, virtually all exports to embargoed destinations and countries designated as supporting terrorist activities such as Cuba, Iran, North Korea, Nor then Sudan, and Syria require a license. Part 746 of the EAR describes embargoed destinations.

Who will receive the item?

Certain individuals and organizations are prohibited from receiving U.S. exports and others may only receive goods if they have been licensed, which may include items that do not normally require a license based on the ECCN and Commerce Country Chart. The following lists must be considered: Entity List found in Part 744, Supplement 4, of the EAR, which is a list of parties whose involvement in a transaction may neces-sitate a license under the EAR; Treasury Department Specially Designated Nationals and Blocked Persons List , which is a list maintained by the Department of Treasury’s Office of Foreign Assets Control which administers and enforces economic and trade sanctions against targeted foreign countries, terrorism sponsoring organizations, and international narcotics traffick-ers; The Unverified List, which is composed of firms for which BIS was unable to complete an end-use check and would indi-cate that an exporter has a duty to inquire about before making an export to them; and the Denied Persons List, which is a list of those firms and individuals whose export privileges have been denied by the BIS and that is found on its website.

What will the item be used for?

Some end-uses are prohibited, while others may require a license. For example, you may not export to certain parties involved in the proliferation of weapons of mass destruction (e.g., nuclear, biological, chemical) and the missiles to deliver them, without specific authorization, no matter what your item is. Information on prohibited end-uses is found in Part 744 of the EAR.

If the determination is made that an item requires a license to be exported under the EAR, one must apply to BIS for the export license. The application can be submitted online through the BIS website at www.bis.doc.gov. using the Simplified Network Application Process Redesign (SNAP-R) link. Once the application is received, the BIS will do a complete analysis of the license application along with all documentation submit-ted in support of the application and will review the item, its destination, its end-use, and consider the reliability of each party to the transaction. If the application is approved, a license number and expiration date will be issued for use on all export documents. A BIS-issued license is usually valid for 24 months. ➡



and return to you for the file. Export classifications and licens-

ing determination can be complex and if your client asks you to

assist in making a determination, unless you have reviewed in

detail the EAR and ITAR and fully understand these regula-

tions, it is recommended to refer the client to an attorney or

other professional who has expertise in export control law.

person who is signing the I-129 for the company has addressed the certification issue prior to signing. If you are preparing the I-129, it is recommended to obtain some form of an attestation or verification from the client that the required determination has been completed. This can be done through the use of a questionnaire or worksheet specifically addressing the certifica-tion provided to the client at the outset for them to complete

Springtime in Paris2011 Barristers’ Ball

April 9, 2011 • Embassy Suites - La VistaThank you to the following law firms & corporate sponsors

for their support of the 2011 Barristers’ Ball

Auction Sponsor• The Daily Record

Band Sponsor• Marsh

Dessert Sponsor• ABA Retirement Plan

Silver Sponsors• Baird Holm LLP• Bartle & Geier Law Firm/Brooks Pansing Brooks PC LLO• Baylor Evnen Curtiss Grimit & Witt LLP• The Berry Law Firm• Bradford & Coenen, LLC• Cassem Tierney Adams Gotch & Douglas• Cline Williams Wright Johnson & Oldfather LLP• Creighton Law School• Fraser Styker PC LLO• Great Western Bank• Gross & Welch• Hauptman O’Brien Wolf & Lathrop PC• Husch Blackwell Sanders LLP• Kalkwarf & Smith Law Offices, LLC• Kevin O’Donnell• Kiewit Corporation• Knapp Fangmeyer Aschwege Besse & Marsh• Kutak Rock LLP• Lamson Dugan & Murray LLP• Lieben Whitted Houghton Slowiaczek & Cavanagh PC LLO

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Raffle Prize Sponsor• Simmons Olsen Law Firm

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I have often wondered why aboriginal Guatemalans would abandon their picturesque village and make a long arduous trek up North. Why would they abandon their life and family knowing the likelihood of mistreatment, jail, and even deporta-tion? As I ask myself these questions, I know that my clients are looking at me and the entire system with the same sense of wonder. In this process of examining each other, many truths are revealed and myths dispelled.

For example, the perception that undocumented immi-grants are monolithic is quickly dismissed. There is a plethora of cultures, customs, and languages, even within those who are generally labeled as Hispanic. There is also a multitude of rea-sons why they come here. Some are fleeing wars and crime, and others are simply seeking a better life. Most are motivated by the desperation they left behind and the hope they bring with them for a new beginning. Few admittedly come with criminal intent. Most of those arrested for identity theft did not plan to

break the law. They simply have no choice as they navigate an immigration and criminal system that is not designed to serve its intended purpose: to regulate immigration in a way that benefits this country both economically and socially.

In the end, as we realize that the “huddled masses” are not that identical after all, we can also begin to see that neither are they that different from us. Hispanics, for example, may appear different and monolithic to the casual observer for want of understanding the cultural nuances of their different denominations and origins. Yet in some ways, they are exactly like us. They share our same goals, aspirations, even values. Nevertheless, to the majority of us they are but invisible, dis-posable, and a convenient scapegoat during hard times. We fail to acknowledge that they are useful, resourceful, and that we benefit from their presence on a daily basis.

Against this backdrop, I will attempt to explain the process by which immigrants end up in the cycle of identity theft under the prevailing legal currents.

The ArrestMost immigrants will be arrested for identity theft in one

of three scenarios: A raid, a warrant, or a traffic stop. Since the Postville debacle, large raids appear to have been disfavored. ICE apparently learned its lesson from the backlash against large-scale raids that often draw negative media attention. Raids today are of a much smaller scale. Enforcement is usu-ally aimed at companies or plants where multiple identity theft complaints are found. ICE frequently scours the FTC databases for complaints. If a handful or more complaints are found to originate about workers in the same company, a raid is organized by first staging a paperwork inspection followed

feature article

Defending Identity Theft in the “ICE” Age: A Tale of Two Cities

by Bassel El-Kasaby

Bassel El-KasabyBassel El-Kasaby is a partner in Kasaby & Nicholls, LLC. He handles immigration, criminal, and civil rights cases. El-Kasaby graduated with distinction from the University of Iowa in 1999 with a JD and an MS in urban planning. In 2008, he received the Roger Baldwin Libertarian of the year award and the NSBA Charitable Funds Inc. visionary award. El-Kasaby is admitted to

practice in the states of Iowa and Nebraska as well as the Nebraska federal district, the 8th circuit and the 10th circuit.

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by arrests. Some such complaints are stale to the point that the victims cannot be contacted or are reluctant to participate. Nevertheless this still provides a valid pretext to make a small-scale arrest that would not ordinarily draw media attention.

Businesses are seldom punished for not keeping their records straight. Immigrants, however, are routinely given the harshest possible legal treatment under federal law, facing stiffer penalties than they would in state courts. In fact, there is a high level of coordination between federal prosecutors and ICE in most cases. They work in lock-step to try to ensure prolonged detention, and steer the conviction machine towards deportation. For example, even though most immigrants arrested in these raids have no criminal history, both federal and ICE prosecutors will always resist release. Meanwhile, many immigrants who are arrested for far more dangerous crimes are routinely released on bond. This reflects, in my opinion, the monolithic view and vindictive nature of the pros-ecution of identity theft crimes.

If not arrested in a raid, immigrants are likely to be found as a result of a direct complaint from a victim. In most instances, the victims are confronted with a debt to the IRS which they do not owe or are denied unemployment because another per-son is using their social security number. They understandably panic, call the authorities, who will waste no time in identify-ing where the accused is working. About half such cases are prosecuted in federal court, the rest will end up in state courts and may fare a little better in this process. Experience suggests that state courts are used usually when federal prosecutors reach their capacity or when the crime occurs in areas remote enough from federal courts.

In some cases, victims will realize that they are actually benefitting to some degree from such crimes, such as when they are accruing unearned social security credits, or when the earn-ings of the immigrant are automatically used to pay their debts, such as delinquent child support. It is not uncommon for such victims to refuse to cooperate with the authorities.

Finally, a small number of identity theft cases arise from traffic stops. The number and pattern of such stops suggests that police have learned from ICE how to spot such issues and prepare cases for prosecution. For example, police will sometimes search persons or cars to look for paystubs which may bear a different name and start investigating along such a thread, often eliciting un-Mirandized statements and conduct-ing unlawful searches.

The Criminal ProcessIn federal courts, immigrants will be offered a plea agree-

ment that is no more than an adhesion contract. Federal prosecutors claim they have no authority to change such agree-ments. There is a high degree of uniformity in how such cases

are treated, even though the nuances of each case are very dif-ferent. This is yet another reflection of the monolithic view and vindictive nature of such prosecutions. For example, one of the conditions required to enter any agreement with the govern-ment is for the immigrant to stipulate his or her removal at the conclusion of the case, even if there are equities in their favor which may allow them to continue to live in the US in spite of their crime.

In such cases, it is important to realistically assess the pos-sibility of relief in immigration proceedings. The only alterna-tives to signing an adhesion plea bargain is to plead without an agreement or take the case to trial. In such cases, one can plead only to those charges where there is no viable defense and go to trial on any other charges. The risks of such an approach are obvious, but it is one way that immigrants can overcome the inflexibility of plea negotiations.

In state courts, the outcomes can vary. State prosecutors in general are not concerned about a defendant’s immigration status. They are more concerned with the victim and the nature of the offense. However, some Nebraska counties have devel-oped inflexible plea bargain guidelines similar to those found in federal court and, at times, a bit harsher.

The Immigration ConsequencesIn Immigration Court, the final resolution depends on the

outcome of the criminal prosecution as a matter of threshold. If an immigrant is convicted of a “crime involving moral tur-pitude,” or an “aggravated felony” for example, this will impact most relief options. There is no occasion in this article to explain fully the definition of “moral turpitude” or “aggravated felony.” Suffice it to say at this point that such an analysis is not straightforward and is often counter-intuitive. It is therefore very important to retain immigration counsel in such cases to guide and advise criminal defense attorneys on immigration consequences of different trial and plea scenarios. Sometimes, minor tweaking of the charges or even how the record is made can impact relief in immigration court.

Moreover, possibilities for relief in immigration proceed-ings must be examined at the onset of the case and should inform the handling of the entire case. There is more incentive for immigrants with strong relief potential to fight harder or be more strategic in the criminal cases. If an immigrant ultimately has no relief, the calculus would be very different. The focus then would be to minimize the damage and avoid jail time, especially if the likelihood of conviction is high.

Too many immigrants in this process cannot afford to retain an immigration attorney. Unlike criminal cases, they are not entitled to a public defender. This is true even though the consequences involve detention and deportation. This is also true in many cases where relief in immigration court is possible.

DEFENDING IDENTITy ThEFT IN ThE ICE AGE


DEFENDING IDENTITy ThEFT IN ThE ICE AGE

concern to protect their compromised identity. This policy also leaves far more dangerous criminals free to roam our streets. At any rate, the real solution lies in meaningful reform that would remove the incentive to commit such crimes in the first place. Besides, large businesses who are the biggest beneficiaries of identity theft do not face much scrutiny and are essentially safe-harbored in exchange for their cooperation in apprehending immigrants.

The type of identity theft at issue here usually involves no more than using false documents in order to work. This is usually the extent of any fraudulent intent. This is far differ-ent from systematic identity theft schemes where a hacker is deliberately trying to cause financial damage to their victims on a large scale. This distinction bears little importance legally, but is very informative nonetheless. In most cases, an immi-grant faces a Hobson’s dilemma between feeding her child and playing by the rules. By the same token, such an immigrant is given no credit for the value of what they contribute in terms of work, taxes, and rearing a family. In that sense, the criminal conduct is akin to stealing bread and should be viewed in that light. After all, how much should one be punished for stealing sixpence?

However, immigration law is very complex and even impossible to navigate without an experienced attorney. This is perhaps one of the biggest advantages the government has in such cases.

Final ThoughtsIdentity theft is not a new phenomenon for immigrants. I

suspect it has been practiced since immigrants began flocking to these shores. It is a means of seeking a privilege: to earn a living and to survive in this country. It is borne out of the desperation that brings people here in the first place and the hope of beginning a new life. It is a crime that is usually com-mitted contritely by otherwise hardworking and decent folk. It is not uncommon for example to see such immigrants paying taxes on their earnings, raising families, and living otherwise wholesome lives.

The current focus on identity theft reflects poor pri-oritization of law enforcement and prosecutorial resources. For example, it would be better to focus on cases where victims actually suffered real pecuniary damage. Without minimiz-ing the impact of identity theft on victims, in cases where the identity is only used for work purposes, the consequences for the victim boil down to inconvenience and the understandable

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Thank You to Our Golf Tournament Sponsors!(as of press time)

THE NEBRASKA STATE BAR ASSOCIATION NEBRASKA LAWYERS FOUNDATION (NLF)

Presents the

8TH ANNUAL GREATERNEBRASKA GOLF SCRAMBLE

FRIDAY, JUNE 17, 2011The PRAIRIE CLUBValentine, NE 69201

888-402-1101

Room Reservations and Additional Golf Outings!

Thursday, June 16th or Saturday, June 18th

To make room reservations or tee times on Thursday, June 16th or Saturday, June 18th please call thePrairie Club at 888-402-1101.

Golf ScrambleFriday, June 17th

Format: 4-Person ScrambleLunch & Driving Range: 10:30 AM - NoonShotgun Start: NoonDinner: 5:00 PMEntry Fee: $150 per golferIncludes: Lunch, dinner, green fee, cart, range balls, and door prize drawings!Players: Pairings will be made for individual and partial team entries.

Proceeds to Benefit The NSBA Volunteer Lawyers ProjectI am unable to play in the tournament, but have enclosed $________ to support VLP.

For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091, or at [email protected]. Please make your checks payable to NLF & return this form to: PO Box 81809, Lincoln, NE 68501-1809.***Gifts to NLF are deductible as charitable donations to the extent allowed by law.***

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Directions: The Prairie Club is located 17 miles South of Valentine on HWY 97


CrimmigrationPotential Immigration Consequences for

Defendants in State Courtsfeaturing Professor Kevin Ruser

REGISTRATION FORM: CrimmigrationName:______________________________________________________________Bar #_______________________

Address:_______________________________________ City:__________________ State:_____ Zip:_________

Telephone:____________________________________ E-Mail:__________________________________________

Overview of Padilla v. Kentucky Decision (30 minutes)

Immigration Fundamentals (60 minutes)• Inadmissibility vs. deportability• Definition of “conviction” for immigration purposes• “Inchoate” immigration offenses

- Particularly serious crimes- Crimes that preclude showing good moral character

• Overview of removal proceedings• Selected types of relief from removal, waivers, and post-conviction remedies

How to Analyze a Criminal Case for Immigration Issues (60 minutes)• Determining a client’s immigration status• Review of common immigration consequences in criminal cases • Ways to ameliorate immigration consequences when craft-ing plea agreements• Helpful resources

Case Studies & Questions (30 minutes)

c Thursday, April 14, 2011 - Fremont2:00pm - 5:00pmFremont Golf Club2710 N Somers Ave • Fremont, NE 68025*Nebraska MCLE Activity #58876 - 3.0 CLE hours

c Friday, May 20, 2011 - North Platte1:00pm - 4:00pmMid-Plains Community College - South Campus601 West State Farm Road • North Platte, NE 69101*Nebraska MCLE Activity #58878 - 3.0 CLE hours

c Thursday, July 21, 2011 - Grand Island1:00pm - 4:00pmGrand Island Saddle Club1 Kuester Lake • Grand Island, NE 68801*Nebraska MCLE Activity #58883 - 3.0 CLE hours

c Thursday, August 11, 2011 - Scottsbluff2:30pm - 5:30pmScottsbluff Country Club5014 Avenue I • Scottsbluff, NE 69363*Nebraska MCLE Activity #58885 - 3.0 CLE hours

This free training opportunity was made possible by the Lancaster County Public Defender Office, with assistance from the Nebraska Minority Justice Committee, and

with funding from the Nebraska Crime Commission (ARRA Recovery Act Funds).

Return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

There is no cost to attend but you must register below for the location you plan to attend.


The United States Citizenship and Immigration Services (USCIS) has released an independent report of the E-Verify system, highlighting the successes, failures, and remaining challenges that employers face today.

The GoodUSCIS reduced the Tentative Nonconfirmations (TNCs

or mismatches) from 8% between June 2004 and March 2007 to almost 2.6% in fiscal year 2009. TNCs result when the information from an employee’s Form I-9 does not match gov-ernment records and E-Verify indicates the case may require additional action.

Additionally, USCIS data indicates that about 97.4% of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92% during June 2004 through March 2007.

Conversely, about 2.6% of newly hired employees, or over 211,000, received either a Social Security Administration or USCIS TNC, including about 0.3% who were determined to be work eligible after they contested a TNC, and about 2.3% who received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved.

The BadDespite the reduction of TNCs overall, it appears that

erroneous information is still a way of life. Employee informa-tion, like the E-Verify system itself, is constantly being updated and changed. Also, it is not uncommon to have misspell-ings or other name variations for first or last names. In these instances, TNCs may result because the employer is uncertain how exactly to enter the name into the system. According to USCIS, of the TNCs resulting from name mismatches in fiscal year 2009, approximately 76% were for citizens and 24% were for noncitizens. USCIS has included information on its website to help employers enter various name combinations to reduce some of these TNCs.

The UnresolvedOver the past two years, USCIS has more than doubled

the number of monitoring and compliance staff overseeing employers’ use of E-Verify. Apparently, however, the staff still lacks the appropriate technology to discern instances of suspected employer misuse easily. According to senior E-Verify program officials, such capabilities will be addressed by fiscal year 2012, through an estimated $6 million advanced data system. USCIS expects this system, known as the Data Analysis System, to automate about 80% of the Monitoring and Compliance Branch’s workload.

It looks like E-Verify will be with us for the foreseeable future. The fiscal year 2010 DHS Appropriations Act reau-thorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program opera-tions. Employers must prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC, as well as other challenges, such as identity theft and discrimination.

feature article

E-Verify: The Good, The Bad and The Unresolved

by Amy Peck

Amy Peck

Amy Peck is a nationally recog-nized immigration attorney prac-ticing out of the Jackson Lewis LLP Omaha, Nebraska office.


NCLE 2nd Annual Mid-May Ethics Seminarfeaturing Sean Carter, Esq.

Friday, May 13, 2011 • 8:45 am - 4:15 pmScott Conference Center • 6450 Pine Street, Omaha, NE 68106

*Nebraska MCLE Activity #58284 (morning session) - 3.0 professional responsibility hours. *Nebraska MCLE Activity #58285 (afternoon session) - 3.0 professional responsibility hours.

Register for morning, afternoon or all day.

REGISTRATION FORM: Ethics Seminar Featuring Sean Carter - May 13, 2011c Morning Session Only - $120 c Afternoon Session Only - $120 c All Day - $230

Name:______________________________________________________________Bar #_______________________Address:_______________________________________ City:__________________ State:_____ Zip:_________Telephone:____________________________________ E-Mail:________________________________________________ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEXAmount enclosed or to be charged $______________Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ |Security Code (located on back of card):_____________ Expiration Date:____________ Mo/YrPlease print name on credit card:__________________________________________________________________Credit card billing address (if different from above):__________________________________________________City:__________________________________________________ State:______________ Zip:_______________Signature:_____________________________________________________________________________________Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

Morning Session8:45 am Thou Shalt Not Lie, Cheat & Steal: The 10 Commandments of Legal Ethics Sean Carter sets out to prove that legal ethics isn’t an oxymoron by delivering an off-beat “sermon” on the Ten Commandments of Avoiding Ethical Problems as a Lawyer. After covering such commandments as “Thou Shalt Know Thy Stuff” and “Thou Shalt Calleth Thy Client Back,” he will have you shouting “Hallelujah,” yelling “Amen” and hopefully, passing around a collection plate.

10:15 am Break

10:30 am Sue Unto Others As You Would Have Them Sue Unto You Increasingly, lawyer civility and collegiality is becoming a thing of the past. Yet it doesn’t have to be that way. In this humorous presentation, veteran attorney and legal humorist Sean Carter will remind you that zealous advocacy does not require you to be a zealot.

12:00 pm Lunch (included with your registration)

Afternoon Session1:00 pm The Passion of the Barrister - How to Rekindle the Passion for the Practice of Law by Focusing on the Self• Selfless Service to the Client and the Public at Large• Excellence in Skill and Character• Loyalty to the Best Interests of the Client• Fidelity to the Law and the Profession

2:30 pm Break

2:45 pm The Passion of the Barrister - Continued

4:15 pm Adjourn

SeAn CARTeR is a Harvard law graduate who practiced law for a decade at major law firms on both coasts and in-house at a publicly-traded financial institution. His often “lawpsided” approach to the everyday dilemmas faced by lawyers has made him a favorite at legal conferences. Each year, he presents more than 100 programs on such topics as legal ethics, professionalism, stress management, diversity, substance abuse, legal marketing, presenta-tion skills. While each program is different, they all have one thing in common -- principled discussion and humor.


Every firm needs process, but because of cultural constraints and a long history of generally doing without, many law firms find embracing process improvement a bitter pill to swallow. But firms that are beginning to integrate process improvement methods and techniques into their work find that their efforts are being celebrated by grateful clients. Moreover,lawyers themselves have discovered that it is not so counterintuitive to the practice of law after all. In fact, process improvement brings the lawyerly role closer to its roots as “trusted advisor” – and then some.

With continuous process improvement in place, law firms form stronger, broader relationships with clients. This is par-ticularly true for companies with mature process improvement (PI) programs in place, who have wondered why it has taken their firms so long to come around to doing business with optimal efficiency, as they themselves have long practiced. In

addition, because many corporations today are reducing the number of law firms they keep on retainer, and often submit-ting work to a panel every time a new project comes up, it increasingly will be crucial for firms to differentiate. Law firms that incorporate PI into their practices will continuously attract companies and GCs that care about efficiency and want their law firm to pro-actively seek ways to add value.

Process efficiency is not about law firms caving in to pricing pressure from clients – in fact, practicing PI may be the best way to avoid that dynamic. It is all about shared benefits. For example, increased efficiency reduces time per case, meaning fewer billed hours for that case and more time freed up for additional work – at the same hourly rate. Firms practicing PI are moving toward alternative fee arrangements with an eye to improving predictability of overall cost per service. This is not an arbitrarily imposed cap on hours or billables, but a way to improve communications with the client at each step, helping to explain what has happened and what is coming, based on applying process (and historical knowledge) up-front to under-stand the expected outcome most closely.

To date, we have not seen firms reducing hourly rates under PI guidelines, but continued pressure in the industry will require ever-more vigilant adherence to process and proven value creation. In general the maintenance of the hourly rate/ fewer hours per case represents a lower per-case cost for the client but higher revenues (due to volume) for the firms – and the future of workable AFAs.

With process improvement in place we also find improved transparency and a higher level of trust both within the firm – whether in client/project progress, billing consistency and accu-racy, fee estimation or write-downs – and externally, with fee

law practice today

Lessons Learned in the Legal Sector: Why Successful Firms Focus on Process Improvement

by David Niles

David NilesDavid Niles is the President of SSA & Company. He previously was a partner at Castling Group and manager of GESD/Castling Investors, a $30 million venture fund. Formerly, he was a manage-ment consultant with Booz, Allen & Hamilton and head of busi-ness development for BMG Direct Marketing, a $1 billion division of Bertelsmann AG. He holds an MBA with distinction from

Columbia Business School and a bachelor’s degree from the University of Virginia. Mr. Niles currently sits on the board of Columbia Business School’s Deming Center.

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arrangements, service process, client requirements, over-runs, results and satisfaction.

So how can a firm start to use process improvement to help its bottom line?

1. Start slowly.

The majority of PI programs in law firms start with smaller pilot programs to post wins, get buy-in gradually and ensure success. Firms believe it is important to eliminate the natural “not invented here” mentality by showing strong initial successes. The pilot projects typically include outside support to ensure efficient and effective completion of projects with a transition to internal training to further develop skills across the firm.

2. Focus on the most-promising areas.

We have seen successful projects across the board, includ-ing in both the “administration” areas and practice areas. It is helpful to identify more than one project within the pilot program to demonstrate both areas of applicability. Some consistent early success areas include:

• Administration, with a focus on time keeping, accounts receivable, document management, and the firm’s intellectual property;

• Client-facing and practice areas, with a focus on AFA and fixed fee services, due diligence, and litigation.

3. Avoid the most common mistakes.

PI programs will NOT succeed without adequate buy-in from the partnership. Successful engagements typically have a single senior partner who aligns with the initiative and drives the pilot projects. We have seen projects without the proper oversight stall and eventually fail.

Like any other change initiative, a key driver of success is to aggressively and effectively communicate to the areas involved. When communication is lacking, associates and partners believe the effort “doesn’t pertain to me” and fail to provide the adequate support needed for success. For overall success, momentum must be built based on the early wins, which every-one must hear about.

Finally, lawyers need to be involved and project leads must speak in terms and language to which lawyers can relate. Examples, templates, training materials, etc., must be tailored to the legal audience and its best-understood contexts.

By building on early wins, achieving buy-in from senior leaders and consistently communicating both inside the firm and with clients, process improvement can transform a law firm and position it for greater success. While integrating process improvement can be a challenge due to a law firm’s culture and the commitment needed to successfully carry it out, the upside is considerable: happy clients, increased revenues, improved profitability, and a strengthened role as “trusted advisor.”

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The scene was reminiscent of those that occur in law offices all over the United States. A lawyer and a paralegal meet with a client to discuss the particulars of an investigation. They discuss the evidence and are working through scores of docu-ments. They are educating the client on the nuances of the evidence before them. They are practicing law in a completely familiar way. It is what happens next, however, that defines how their law practice is different.

The first explosion happens without warning and catches the three off guard. “Incoming!” “Get down!” is shouted reflex-ively as the second, and even closer, explosive concussion can be felt. At least one more rocket explodes in quick succession as the three find themselves sprawled on the floor covering their heads. In the lifetime that passes over the next few seconds, a break in the action is their signal to scramble into their helmets and body armor before resuming their place on the floor. After a several minutes of deafening silence, the attorney quickly heads across the breezeway into the company headquarters office to let them know the three of them are accounted for. The “All Clear” has not yet been given, so the attorney heads back to the office, assumes a covered position under a desk and makes sure everyone stays down.

Because rocket attacks often occur without warning, and can occur in different waves, it is not safe to be upright until the “All Clear” is given. A few months earlier, a soldier was killed as she ran into a bunker. The shrapnel ripped through her hip and gut – the typical trajectory of the shards of metal that result from a rocket exploding in soft earth. That is why when you get down, you stay down. You want to stay lower than the shrapnel. Unfortunately, waiting for the “All Clear” can take hours, so it is human nature to get bored and complacent even in the midst of life and death excitement. Fortunately, on this day the “All Clear” was given within 30 minutes, so the practice of law resumed unscathed but shaken.

Welcome to Contingency Operating Base (COB) Adder,

special feature

Lawyers, Guns and Not Enough Moneyby Major Christopher M. Ferdico

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Major Christopher M. Ferdico is a litigation partner in the Lincoln, Nebraska, law firm of Baylor, Evnen, Curtiss, Grimit & Witt. His civilian practice involves both civil and criminal litigation in federal and state courts. He is currently serving near An Nasiriyah, Iraq, as the Brigade Judge Advocate with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade in Iraq. This is MAJ Ferdico’s second combat tour in Iraq as he previously served with the 101st Airborne Division during the 2003 invasion. He also served a tour of duty in Kosovo in 2001.

Captain William harris is a solo practitioner in Omaha, Nebraska. His law practice focuses on criminal law, bank-ruptcy and juvenile law in federal and state courts. He is currently serving near An Nasiriyah, Iraq, as the Assistant Operational Law Attorney with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade. This is CPT Harris’ first combat tour of duty.

Sergeant Jennifer Nelson is a paralegal from Gothenburg, Nebraska. She is currently serving near An Nasiriyah, Iraq, as the Non-Commissioned Officer in Charge (NCOIC) of paralegal operations with the Nebraska National Guard’s 67th Battlefield Surveillance Brigade. This is SGT Nelson’s first combat tour of duty.

From L-R: Captain William Harris, Sergeant Jennifer Nelson, Major Christopher M. Ferdico

PRACTICING LAw IN IRAq, I


home of the 67th Battlefield Surveillance Brigade – the “Pike” Brigade – of the Nebraska Army National Guard. The Pike Brigade is a 1400+ Soldier intelligence and surveillance brigade that is responsible for a significant portion of intelligence collec-tion in the Iraq Joint Operations Area. Like all Army Brigades, the 67th has a legal section staffed with attorneys and paralegals that are responsible for minimizing the impact of legal issues on military operations. I am Major Christopher Ferdico, the Brigade Judge Advocate. Welcome to my law office.

As the Brigade Judge Advocate, I have several responsibili-ties and two major clients. My first and primary client is the Army itself. I am responsible for ensuring that the Institution of the United States Army is not disgraced by the actions of leaders within our command. My official job description states that I:

Provide operational law guidance to the Brigade Commander and all subordinate commanders. Train and monitor compliance regarding the Law of Armed Conflict. Provide training and ensure statutory and regulatory compliance for all major functional areas including intelligence operations, security, personnel, fiscal operations and supply. Coordinate legal support for military, civilian DOD, and supported contractor person-nel throughout the brigade. Provide for the swift, just and proper application of military justice throughout the Brigade.

Like many attorneys, I am required to be both a specialist and a generalist.

As a specialist, I advise the Brigade Commander, as well as his subordinate commanders, on the Law of International Armed Conflict and the operational law policies of the United States. Where appropriate, I must also advise him on how our policies and the United States’ official interpretation of the Law of War differ from those of our international partners. Additionally, because of our Brigade mission, I advise the com-mand regarding all aspects of intelligence law including means and methods of intelligence collection, interrogation, dissemi-nation, funding, and source operations, among other topics.

As a generalist, I must advise the commander on the thou-sands of pages of law and military regulations that dictate how our Army is supposed to operate on a day-to-day basis. I serve as his primary counselor regarding his authority as a senior commander in a theater of war. Like any good lawyer, I must help him walk the fine line between what he can do versus what he should do. In order to do my job I work closely with every member of the staff and am responsible for reviewing all opera-tional plans. I also oversee and coordinate all investigations that occur in order to ensure they are complete and conducted in accordance with law and regulation.

Captain William Harris is the other attorney for the Brigade. His official title is Assistant Operations Attorney. Although he serves as my assistant and as the Brigade Judge

Advocate in my absence, his primary role is to be the com-mand’s military justice expert. He is responsible for ensuring that all potential criminal conduct is dealt with appropriately and thoroughly. He is, for lack of a better term, our Brigade prosecutor. He represents the Government during Courts Martial proceedings. Military Justice is similar to criminal law with many of the same crimes and procedures as those found in civilian courts. It is also a minefield of uniquely military procedure, lexicon and crimes. Terms such as “Good Order and Discipline,” “Disrespect,” “Conduct Unbecoming” and “Absent Without Leave” are as legally common as “assault,” “theft,” or “arson.”

The brigade also has four paralegals located throughout Iraq. There is one with each of our three primary Battalions. Our chief paralegal is Sergeant Jennifer Nelson and she is located with us at COB Adder. She is a military trained para-legal from Gothenburg, Nebraska. Other than being versed in the unique lexicon of military parlance and procedure, she acts as most paralegals do. She serves as our primary admin-istrative assistant. She works with investigators, clients and the accused to ensure the appropriate processes are used. She helps coordinate our legal activities, conducts legal research and she prepares “pleadings” and other legal documents. She assists soldiers with powers of attorney and notary services. Sometimes, however, she does these things under fire.

Because of our role in providing advice to the command, we do not provide trial defense services or most legal assistance to individual soldiers. Trial Defense Services (TDS) is very simi-lar to a public defender’s office and they are spread throughout the Iraqi theater to provide defense for individual soldiers, and DOD civilians, for Federal and military crimes. Likewise, most individual legal services such as tax advice, wills, powers of attorney, passport assistance and other matters are handled by legal assistance attorneys throughout the theater. While we can provide those services when they are otherwise unavailable, we are lucky to have a legal assistance office here on COB Adder. As such, we are able to refer these matters out of the Brigade. With only two lawyers and paralegal, there would not be enough hours in the day if we didn’t get help in these areas.

Another critical responsibility is our duty to report inves-tigations and certain suspected violations of law, regulation or policy to our higher headquarters. As such, we work closely with the small army of attorneys that advise the command at United States Forces, Iraq (USF-I). As a major command, USF-I has more than 50 military and civilian attorneys that are “stove piped” by specialty. The legal sections include Operational Law, Intelligence Law, Administrative Law, Contract and Fiscal Law, Detainee Operations and others. As much of what we do will end up on the desk of a General Officer, Member of Congress, or even the Secretary of the Army, we work closely with our counterparts at our higher

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for the investigator (as is the case in all military investigations, the person assigned as the investigating officer is removed from normal operational and combat duties). That day, SGT Nelson and I worked on this Equal Opportunity claim. We also had to deal with issues of military justice, intelligence law, and numerous legal questions for various commanders and staff members … not to mention those pesky rockets. Welcome to a typical legal office in Iraq.

headquarters. In reality, our relationship with USF-I defines our success. As such, our liaison functions are as critical as anything we do.

On the day initially described, SGT Nelson and I were meeting with an officer who was assigned as the lead investiga-tor for an Equal Opportunity complaint. He was investigating whether a soldier was discriminated against based upon her gender. The investigation took forty five days of full time work

special featurePRACTICING LAw IN IRAq, II

The Rule of Law in Iraq

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Iraq has been called the cradle of civilization. The cradle of civilization is the term used to define the location in history when human civilization became complex in the terms of its use of technology, science, politics, and the division of labor. (www.h-net.org/~museum). This is also the time period when some of the earliest laws in history were recorded. The rule of law in Iraq predates the United States by thousands of years. As a result, the rule of law in Iraq has had thousands of years to evolve. Unfortunately, this also means that it has had an equal amount of time to devolve.

Rule of Law and Military OperationsThe “rule of law” is a term of art. It is used to describe the

ideals of justice and fairness within an established legal system. It is a powerful term as it can describe the success or failure of a nation state. It is a term President Obama used when he said, “I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law.” (President Barrack Obama, Address at Central Intelligence Agency Headquarters https://www.cia.gov/news-information/speeches-testimony/president-obama-at-cia.html).

In the United States military, “rule of law” has also become a doctrinal term. The Army defines it as “a principle of gov-ernance in which all persons, institutions, and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and inde-pendently adjudicated, and which are consistent with inter-national human rights norms and standards.” (United States Department of Army, Field Manual 3-07, Stability Operations 1-9 Oct. 2008). Historically, however, the military has not viewed rule of law as a separate component of military action.

That was always a political province to be developed by the Department of State. By doctrinalizing the concept of the rule of law the military has recognized it as a critical component of stability operations.

The importance of the rule of law in military operations has become increasingly evident during post Gulf War mili-tary operations. Whether Panama, Bosnia, Kosovo, Iraq, or Afghanistan, the establishment of a fair and just government is the key to victory. The United States military is not designed to serve as a long term governing body. Absent a civilian structure to address the basic collective needs of the citizenry, chaos will rule the streets. This creates a security environment that necessarily detracts and diverts resources from the main military objective.

Rule of Law in IraqDuring the reign of Saddam Hussein and his Ba’athist

Party, the laws in Iraq were not applied equally between ordi-nary citizens and the Ba’athist elites. Although some may argue legal inequality plagues all nations, including our own, no one can deny that the law was intentionally unequal in Iraq. As such, one of the earliest goals of the overall Iraq strategy was to establish a commitment by the Iraqi Government to the rule of law. The security situation, however, made it necessary for the U.S. military to take a major role in rule of law operations in lieu of the Department of State. As a result, military law-yers, known as Judge Advocates, have been instructed to help the Iraqis establish their rule of law. Today Judge Advocates meet daily with Iraqi lawyers, judges, and security forces to help implement the rule of law objectives.

Obviously, to help Iraq implement its law one must know


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crime labs to process this evidence. Until judges adopt the trend, however, the Iraqi judicial system will continue to seem rudimentary (at best) to American lawyers.

One area of success in Iraq, and an area critical to the ultimate success of any nation, is the establishment of an inde-pendent judiciary. For the most part, Iraqi judges have shown a fierce willingness to decide cases on their interpretation of the law without interference from other branches of government. Chief Judge Medhat al-Mahmound, President of Iraq’s Federal Supreme Court and a respected jurist, is a staunch proponent of the independence of the judiciary. He has shown a willing-ness to relocate or remove lower court judges who violate this principal. During the first meeting of the Federal Supreme Court in 2011, one of the topics Judge Medhat stressed was the importance of the rule of law.

The Way ForwardIraqis, like all of us, are a proud people. To be successful in

helping Iraq develop the rule of law, it is important for us not to tell them what their law is—or what it should be. They seem most receptive, and most appreciative, of helping them find increasingly just and efficient ways to enforce and apply their laws. Therefore, in order to be successful, we must empower the rule of law without imposing our will or our values on the Iraqi Judicial System. As we often say, we must help Iraq develop Iraqi solutions for Iraqi problems.

By the time the United States military finishes its sched-uled departure from Iraq in December, 2011, the Department of State will resume its role as the sole U.S. agency consulting the Iraqi Government in rule of law. They will undoubtedly continue the projects the military has initiated, ranging from funding major buildings (i.e., Building of Courthouses) to the more mundane (i.e., buying law books). They will also con-tinue to train, mentor, and assist Iraqi judges and lawyers. The Department of State is the agency that has always had the most experience, resources, and expertise in helping to develop rule of law with international partners.

In Iraq, the way forward ultimately lies with getting the Iraqi people to believe the legal system is a fair and just way to settle disputes. To do this we must demonstrate our own respect for Iraqi law and the Iraqi legal system. This will further the overall strategic goal of creating a stable Iraq and creating a long term partnership with the United States. Hopefully, it will also help spread stability to the Middle East as a whole. As history has taught us, the rule of law is critical if the Government of Iraq is to be regarded as a legitimate nation state. If Iraq fails in this regard, the cradle of civilization will continue to regress back to its infancy.

the law and the structure of its court system. The Iraqi Criminal Court System is comprised of a Supreme Court, Appellate Courts, and Lower Court. Similar to the United States, the Appellate Courts will review opinions of Lower Courts in its jurisdiction and the Supreme Court is the ulti-mate appellate authority. Unlike the United States’ common law system, Iraq has a civil law system. Civil law is “The most widespread type of legal system in the world, applied in various forms in approximately 150 countries.” (Source: CIA Website). The major feature of civil law systems is that the laws are organized into extensive and systematic written codes. Id. In a civil law system, the primary source of law is legisla-tion. Courts will only review custom or common law second-arily and only if necessary.

In Iraq, criminal law has two phases, the investigation phase and the trial phase. Iraq uses Investigative Courts to collect and review evidence and ultimately decide if the case should be transferred for trial. At the investigative stage the defendant has a right to present evidence to the judge. The Iraqi judicial system is not designed to be adversarial. At the investigative stage the judge often meets with law enforcement ex parte as the investigative judge has a prosecutorial function. The investigative judge is also, however, supposed to objectively view the evidence from defense perspective before authorizing a defendant to be detained or bound over for trial. If the case is transferred to the trial court, the trial judge will do most of the questioning. The role of the prosecutor and defense counsel is limited--both generally are present only to make opening state-ments and neither is allowed to question the witnesses.

In order to obtain a conviction, a court must have evidence from two sources. (Para 213B Law on Criminal Proceedings No. 23 of 1971). In Iraq, the vast majority of the courts interpret this requirement to mean that there be some type of eyewitness testimony to convict someone of a crime. Absent eyewitness testimony the defendant generally cannot be found guilty of a crime. For Judge Advocates and those in the military who are responsible for assisting in the prosecution of those who are waging the ongoing campaign of violence in Iraq, this part of Iraqi law is frustrating. These “eyewitness” courts will not give any weight to forensic, biometric or circum-stantial evidence – assuming it is even held admissible.

Because of this, a primary rule of law focus has been to educate Iraqi judges on the reliability of forensic evidence, bio-metric evidence and the usefulness of circumstantial evidence. Similarly, there has been an increased focus on providing law enforcement both the technology and training necessary to develop scientific evidence. The United States has been instru-mental in helping the Iraqi Government establish regional


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If you answered no to any of these questions, contact the ABA Retirement Funds to learn how to keep a closewatch over your 401(k).

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The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the“Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds establishedunder the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associatesof the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligibleto participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.comor by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, ora request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds establishedunder the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would beunlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nebraska State BarAssociation as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is availablethrough the Program.

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Nebraska Ethics Advisory Opinion for LawyersNo. 11-02

a lawyer who is a full-time insurance agent may also practice law provided that the lawyer complies with the rules of professional conduct, that the lawyer does not actively solicit legal business from his insurance clients, that the lawyer does not advertise that he is a lawyer, and that the lawyer does not give legal advice to his life insurance customers without written informed consent from the clients.

FactsA lawyer who serves as in-house counsel for an insurance com-pany would like to become a full-time captive insurance agent. While working for the insurance company, the lawyer wishes to provide legal advice to insurance customers and public persons who are not his insurance customers. The lawyer would like to advertise the fact that he has a law degree but would not repre-sent that he is an insurance lawyer or actively seek to take cases from his insurance customers.

DiscussionWhile the Model Rules of Professional Conduct do not specifi-cally address permissible business practices in which active bar members may participate, there are several rules that are appli-cable to attorneys who wish to pursue other business opportu-nities while continuing to practice law. While a lawyer must take care to abide by all of the Rules of Professional Conduct, Rules 1.2, lA, 1.7, 1.8,5.7,7.1, and 7.2 are informative when determining which outside business practices mayor may not be permissible.

The Advisory Committee has previously addressed several issues relating to the sale of insurance by lawyers. In Opinion No. 68-3, the Committee came to the conclusion that a lawyer could sell insurance other than life insurance as long as the lawyer avoided any suggestion that the insurance company served as indirect solicitation for his law business. In the same Opinion, the Committee referenced a ruling in Informal Opinion No. 775 which remains useful. Informal Opinion 775 held that a lawyer may engage in an independent business “(1) if the separate business is clearly not necessarily the practice of law when conducted by a lawyer, (2) if it can be conducted in accordance with and so as not to violate the Canon, (3) if it is not used or engaged in such a manner as to directly or indirectly advertise or solicit legal matters for the lawyer as a lawyer, (4) if it will not ‘inevitably serve’ as a feeder to his law practice ... “

Under the instant set of facts, the sale of insurance would not be the practice of law when conducted by a lawyer, if the law-yer conducted himself in accordance with the current Rules of Professional Conduct, and the insurance sales did nor serve as a feeder to the lawyer’s law practice.

In order to insure that the lawyer’s sale of insurance does not serve as a feeder to his law practice, the Committee would deem improper any attempt to advertise the fact that he is a lawyer when soliciting business in his capacity as an insurance agent. Such a representation would constitute the indirect solicitation for his law practice which was deemed improper in Opinion

68-3 and other previous informal opinions. Once a prospective insurance customer becomes a client, however, the lawyer may disclose the fact that he has a law degree and may provide legal advice in some situations.

The questions presented in this matter differ from those previ-ously answered in Nebraska in that the lawyer wishes to work primarily as an insurance agent while simultaneously providing legal services in limited situations. In addressing the issues, it is our opinion that Ethics Opinion 306 from the District of Columbia correctly states the duties of an insurance agent who is also a practicing lawyer. That Opinion states:

A lawyer who is also an insurance broker may sell insurance products to the general public provided the lawyer complies with the ethics rules. When selling insurance to nonclients, the lawyer must ensure that the prospective purchaser understands that the lawyer is acting exclusively as an insurance broker and not as a lawyer in the transaction, and she must ensure that a lawyer-client relationship is not inadvertently created. When selling insurance products to clients, the lawyer must ensure that the transaction will not adversely affect the lawyer’s professional judgment on behalf of the client; the terms of the transaction are fair, reasonable, and fully disclosed in writing to the client; the cli-ent is advised and given the opportunity to seek independent counsel regarding the transaction; the client is advised of the lawyer’s interest in the transaction and of possible conflict of interest and attendant adverse consequences; and the client consents in writing to the transaction.

It should be noted that the District of Columbia currently allows multidisciplinary practices while such practices have not been formally approved in Nebraska. While authority to change acceptable practice in Nebraska ultimately rests with the Nebraska Supreme Court, this committee feels that Opinion 306 of the District of Columbia is informative and applicable to the facts at hand.

In selling insurance to customers with whom the lawyer ulti-mately develops a lawyer-client relationship, the lawyer must take measures to ensure that the client understands the lawyer’s dual role as insurance salesman and counselor. These measures include written notice of the lawyer’s interest in any insurance transactions. In representing persons who are not insurance customers, the lawyer must ensure that he does not represent any clients with actual, implied, or apparent conflict with his insurance carrier employer.

ConclusionIn accordance with the previous Opinions of this Advisory Committee and Ethics Opinion 306 from the District of Columbia, we find under the facts and circumstances of this case that a lawyer may be employed as a full-time insurance agent and provide legal advice to insurance customers and oth-ers so long as the lawyer does not violate the applicable Rules of Professional Conduct and gets informed consent in writing from the client which acknowledges the lawyer’s interests in all transactions between the two parties.


NSBA calendar

NSBA Events CalendarApril 2011 9 7th Annual NSBA-NLF Barristers’ Ball Embassy Suites, La Vista

14 “Crimmigration” featuring Professor Kevin Ruser Fremont Golf Club, Fremont

22 Leadership Academy, TBA

May 2011 3 Law Day 2011 Luncheon Holiday Inn Central, 3321 South 72nd Street, Omaha

6 NCLE Immigration Seminar

Embassy Suites, La Vista

12-13 UNL Estate & Business Planning, University of Nebraska College of Law, Lincoln

13 NCLE Ethics Seminar featuring Sean Carter, Esq. Scott Conference Center, Omaha

19 Evidence with Colin Mangrum Creighton Law School, Omaha

20 Tax Developments 2011 featuring Alan B. Kerkhove Mid-Plains Community College - South Campus, North Platte

20 “Crimmigration” featuring Professor Kevin Ruser Mid-Plains Community College - South Campus, North Platte

June 2011 3 2nd Annual NSBA Community Service Day

3 Anatomy for Lawyers featuring Professor Samuel D. Hodge Scott Conference Center, Omaha

17 8th Annual Greater Nebraska Golf Tournament Prairie Club, Valentine

July 2011 15 NCLE Family Law Section Seminar Champtions Run, Omaha

21 “Crimmigration” featuring Professor Kevin Ruser Grand Island Saddle Club, Grand Island

21-22 Iowa/Nebraska Solo Small Firm Conference TBA, Council Bluffs, IA

August 2011 21 “Crimmigration” featuring Professor Kevin Ruser Scottsbluff Country Club, Scottsbluff

22 15th Annual NSBA Golf Tournament Country Club of Lincoln, Lincoln

September 2011 30 NCLE Labor & Employment Law Annual Seminar Embassy Suites, La Vista

October 2011 18-21 NSBA Annual Meeting

Cornhusker Hotel, Lincoln

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Tax Developments 2011featuring Alan B. Kerkhove

Friday, May 20, 2011 • 8:30 am - 12:00 pmMid-Plains Community College - South Campus

601 West State Farm Road • North Platte, NE 69101*Nebraska MCLE Activity #58899 - 3.0 CLE hours.

REGISTRATION FORM: Tax Developments 2011 - May 20, 2011c Registration - $120


8:30 am Registration/Pick-Up Materials

8:45 am The Two Hottest Tax Topics in Estate Planning

9:45 am COD - It’s Not a Fish

10:15 am Break

10:30 am Bankruptcy Tax: The Essential Issues of 2011

11:15 am After the Bill: Dealing with the I.R.S. and Nebraska Department of Revenue on Collection Issues


AlBeRT B. KeRKhove held positions as the Managing Counsel and Associate Area Counsel Small Business/Self Employed of the Office of Chief Counsel, Internal Revenue Service in Omaha, Nebraska. Mr. Kerkhove’s practice, either personally or in his supervisory capacity, focused on taxation of individuals, corpo-rations, limited liability companies, trusts and estates in the United

States Tax Court and the United States Bankruptcy Court for the District of Nebraska. He served as a Special Assistant United States Attorney in the District of Nebraska (Bankruptcy Court) from 1989 through 2007. Since becoming an attorney with Chief Counsel, Mr. Kerkhove represented the Commissioner of Internal Revenue in over 50 cases resulting in published opinions. His most recent T.C. regular case is Speltz v. Commissioner, 124 T.e. 165 (2005).

Mr. Kerkhove served as a counselor at law to revenue officers, rev-enue agents, tax compliance officers, the Local Taxpayer Advocate and Appeals Officers, and their managers. He has extensive expe-rience in litigation and advice matters including compensation, business expenses, collection due process, and estate and gift tax matters. He lectured on bankruptcy tax issues at the Bankruptcy Seminar presented by the Federal Bar Association of Iowa and the Nebraska Continuing Legal Education bankruptcy seminar. Mr. Kerkhove now practices in the areas of tax controversies (audit and collection), estate and gift taxation, estate planning, and related matters. He is a member of the American Bar Association and its Section of Taxation and the Nebraska Bar Association. He is admit-ted to practice in the United States District Court for Nebraska and the United States Tax Court. His office is at 11605 Arbor Street, Suite 107, Omaha, Nebraska 68144. He can be reached at [email protected] or 334-0900.


Omaha Bar Association Memorial Program

The Omaha Bar Association Memorial Program has been scheduled for Wednesday, May 11, 2011, at 11:30 a.m. in the Legislative Chambers of the Omaha-Douglas Civic Center, 1819 Farnam Street, Omaha, Nebraska. The program is held each year to honor those members of the bar association who have died within the year. We sincerely hope you will attend this special Memorial Service to honor our departed attorneys.

Schroeder Retiring from LawDUANE SChROEDER of Wayne, Nebraska, is retiring

from the practice of law. He and his wife plan to travel, includ-ing a planned motorcycle trip to the Grand Canyon and other travel plans. He is also active in Pheasants Forever and in the commu-nity generally. Originally from Bloomfield, Schroeder earned his bachelor’s degree from Wayne State College and taught history and German for a time in the area. He also served in the Nebraska National Guard, and later entered law school at the University of Nebraska, receiving his J.D. in 1975.

He first worked with Charles and Evelyn McDermott in their Second Street office in Wayne. Beginning with a general

practice of law, he later focused on estate planning, probate and real estate law. Later he shared office space with Doug Murray and Melissa Wentling. In an interview for the Wayne Herald Duane noted that law practice has changed over the years.

“When I first started practicing, things were much more laid back. People would show up at court just to see other people. They don’t do that any more.”

Schroeder’s family include his wife, Betty, a retired teacher, daughter and son in law, Erin and Travis and their family, who live in Kansas, and son and daughter in law Travis and Kirsta, who live in Dublin, Ireland.

KATE M. JORGENSEN, who has been sharing office space with Schroeder, will take over the practice. She received her bachelor’s and master’s degrees from Wayne State College

and her J.D. from Creighton University, cum laude, in 2004. She began her legal career in private practice, later becom-ing a Deputy Public Defender for Madison County, and then returning to private practice in Wayne. She is a mem-ber of the Nebraska State Bar Association, Madison County 7th Judicial District Bar Association, and Nebraska Criminal Defense Attorneys Association. Her practice areas include estate planning and

probate, criminal defense, family law, real estate, and business. She has purchased the building and resides in Wayne with her three children.

legal community news

Duane Schroeder talking with Kate Jorgensen. Photo by Clara Osten.


NCLE calendar

April 2011

13 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors?Nebraska Activity #55909 (3.0 hours of CLE credit)

14 “Crimmigration” featuring Kevin Ruser

Fremont Golf Club, FremontNebraska Activity #58876 (3.0 hours of CLE credit)

May 2011

6 NCLE Immigration Seminar Embassy Suites, La Vista

11 Webcast: Maxims, Monarchy, and Sir Thomas More Nebraska Activity #55915 (3.0 hours professional responsibility or general CLE credit)

12-13 UNL Estate & Business Planning University of Nebraska College of Law, Lincoln

13 NCLE Ethics Seminar featuring Sean Carter, Esq.

Scott Conference Center, OmahaNebraska Activity #58284 (morning session) (3.0 hours pro-fessional responsibility or general CLE credit)Nebraska Activity #58285 (afternoon session) (3.0 hours pro-fessional responsibility or general CLE credit)

19 Evidence with Colin Mangrum Creighton Law School, Omaha

20 Tax Developments 2011 featuring Alan B. Kerkhove

Mid-Plains Community College - South Campus, North PlatteNebraska Activity #58899 (3.0 hours of CLE credit)


Mid-Plains Community College - South Campus, North PlatteNebraska Activity #58878 (3.0 hours of CLE credit)

June 2011

1 Webcast: Impeach Justice Douglas!Nebraska Activity #55916 (3.0 hours professional responsibility or general CLE credit)

3 Anatomy for Lawyers featuring Professor Samuel D. Hodge Scott Conference Center, OmahaNebraska Activity #58689 (6.0 hours of CLE credit)

8 Webcast: Lincoln on ProfessionalismNebraska Activity #55919 (1.0 hours professional responsibility or general CLE credit)

15 Webcast: Thurgood Marshall’s Coming!Nebraska: Activity #55921 (3.0 hours professional responsibility or general CLE credit)

22 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors?Nebraska Activity #55929 (3.0 hours of CLE credit)

29 Webcast: Clarence Darrow: Crimes, Causes and the CourtroomNebraska Activity #55930 (3.0 hours professional responsibility or general CLE credit)

July 2011

15 NCLE Family Law Section Seminar Champions Run, Omaha


Grand Island Saddle Club, Grand IslandNebraska Activity #58883 (3.0 hours of CLE credit)

21-22 Iowa/Nebraska Solo Small Firm Conference Location TBA, Council Bluffs, IANebraska Activity #58883 (3.0 hours of CLE credit)

August 2011


Scottsbluff Country Club, ScottsbluffNebraska Activity #58885 (3.0 hours of CLE credit)

September 2011

30 Labor & Employment Law Annual Seminar Embassy Suites, La Vista

October 2011

19-21 NSBA Annual Meeting Cornhusker Hotel, Lincoln

NCLE Calendar


Now that the dust has settled from the end of our first reporting period for MCLE compliance, please note an important change in the MCLE rules. The Supreme Court has amended §3-401.5 to provide an exemption for attorneys over 70. Beginning in 2011, attorneys no longer have to report MCLE credits once they reach the year in which their 70th birthday occurs. The rule amendment did not alter the obliga-tion to earn 10 credits in 2010.

We owe a great deal of thanks to the dedicated and hard working staff of the MCLE Commission. During December staff fielded over 2500 calls from attorneys seeking assistance in filing their annual CLE reports. We wanted to make sure no one missed a deadline because we were slow in processing a request for approval, accordingly we were able to process cours-es on the day they were submitted ensuring that no attorney waited more than 8 hours to have a course approved. At the end of the day on December 31 there were no requests waiting to be processed. That sometimes meant working 15-hour days and holidays. Without the hard work and gracious assistance that our help desk provided to Nebraska attorneys we would

not have been able to keep up with the workload occasioned by year end reporting.

We also owe a great deal of thanks to the attorneys who showed patience and perseverance in this first year of a new program. Of the approximately 6200 active attorneys on NSBA rolls, there are now only 6% who have not filed an annual report for 2010, a relatively low percentage of noncompliance for a first year CLE program. While learning a new computerized system is always a challenge, we received many positive state-ments from attorneys who were able to master the program. The compliance process involves the issuance of certified letters to all those who did not file a report. The letter will require the non compliant attorney file an affidavit indicating the reason for the noncompliance. The attorney has 45 days from the date the letter is served to comply with the education requirement. A recommendation of suspension is then made to the court if the attorney does not comply within the 45 days. The help desk remains available to assist with any questions. The help desk can be reached by calling 402-471-3137.

MCLE news News From the MCLE CommissionCarole McMahon-Boies

MCLE Commission

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173Telephone: 847-519-3600 Fax: 800-946-6990

Toll-Free: 800-844-6778www.landexresearch.com

GEOFFREy C. hALL was recently appointed by Governor Heinemann to serve as District Judge of the Sixth Judicial District in Dodge County, Fremont, Nebraska. As a result, Mr. Hall has closed his law practice known as Hall Law Offices, PC. Hall is a graduate of Kearney State College and Creighton School of Law. Upon his graduation from Creighton, Hall practiced with the law firm of Shughart, Thomson & Kilroy in Kansas City, Missouri from 1988 to 1990. In 1990, Hall returned to Nebraka and joined the Nebraska Bar Association practicing with the firm of Kelley & Lehan, PC, which later became Kelley, Lehan & Hall, PC. In 2000, Mr. Hall opened his own law practice, Hall Law Offices, PC, with offices in Blair and Tekamah, until he was tapped by the Governor to serve on the District Court bench. Judge Hall’s office informa-tion is: Dodge County District Court, 428 North Broad St., Fremont, NE 68025, 402-727-2780.

court news


Anatomy for Lawyersfeaturing Professor Samuel D. HodgeFriday, June 3, 2011 • 8:45 am - 4:15 pm

Scott Conference Center • 6450 Pine Street, Omaha, NE 68106*Nebraska MCLE Activity #58689 - 6.0 CLE hours.

REGISTRATION FORM: Anatomy for Lawyers - June 3, 2011c Registration - $220 c In Practice 5 Years or Less - $195


8:45 am Overview of Human Anatomy • Key terms for understanding medical reports• Difference between ligaments, tendons and muscles; other key body parts - joints, and the central and peripheral nervous systems. The Back• Parts of the spine• Why the spine has four curves• Different parts of the vertebrae, discs and spinal cord• Which parts are more prone to injury

10:15 am Break

10:30 am The Back - continued • Spinal cord and nerve roots• Back injuries• Spinal surgery - laminectomy, discectomy, fusion and forami-notomy Diagnostic Tests for Back Injuries• Why physicians order X-rays, CT scans and MRIs and the differ-ences between the tests


1:00 pm The Upper Extremity• The Shoulder• Elbow problems• Hand problems

2:30 pm Break

2:45 pm The Knee & Hip• What bones and soft tissues make up the lower extremity• Differences between the ligaments• Types of knee and hip surgery, repair & replacement• How trauma happens• Diagnostic tests• Capitalizing on diagnostic images

4:15 pm Adjourn

PRofeSSoR SAmuel D. hoDGe brings boundless enthusiasm to the topic of anatomy. He is a skilled litigator who has taught medical topics for more than 25 years. In plain English, and with a sharp focus on the challenges you face in your law prac-tice, Sam covers handling back, shoulder, hand and knee injury cases. He makes practical, case-clarifying sense of complicated medical injuries, terms and conditions. He provides the essential tools that you need to properly evaluate and articulate your case to make it persuasive to 1) your client, 2) opposing counsel 3) the judge and, if need be, 4) the jury.

Program Highlights• How to understand and interpret medical jargon.• The difference between soft tissues: muscles, ligaments and tendons.• The mechanism of trauma to the neck, back, knee and upper extremity.• The difference and limitations of today’s common diagnostic tests


The Omaha law firm of Gross & Welch is pleased to announce ROBERT A. MOONEy has been elected as a shareholder of the firm. Mooney earned his undergraduate degree from the University of Nebraska in 1994, and his law degree from the University of Nebraska - College of Law in 1997. Mr. Mooney is a trial lawyer, whose practice has focused

on insurance defense, medical malpractice defense, personal injury, commercial, and appellate litigation. Mooney is a mem-ber of the Nebraska State Bar Association, Defense Research Institute, and serves on the Board of Directors of the Nebraska Defense Counsel Association. In addition, he is also a member of the Omaha Bar Association, where he served on the Courts Committee from 2002-2007. Mooney has been a member of the Omaha Barristers since 1997, and served as President of the Barristers in 2007-08, and is presently the Chair of the Omaha Bar Association’s Memorial Committee. Mooney has served the Nebraska State Bar Association by sitting on the Nebraska Judicial Nominating Committee for the Separate Juvenile Court of Douglas County from 2003 through 2010, and currently serves on the Nebraska Supreme Court’s Disciplinary Review Board. Since 2006, Mooney has served as a board member on the City of Omaha Police and Fire Retirement System.

JEREMy CROSS has opened Cross Law Firm, PLC, a Sioux City-based firm. Jeremy graduated from Creighton School of Law in 2005. He is licensed in Iowa and Nebraska. His general practice includes but is not limited to personal injury, products liability, litigation, insurance law, real estate, business law, commercial law, collections, debtor and creditor, contracts, and probate law.

RANDALL R. RITNOUR, PAUL A. PAyNE, and BRIAN A. COON are pleased to announce the establishment of the law firm RITNOUR, PAyNE, & COON, L.L.P. Areas of practice for the firm include immigration law, family law, wills and estates, criminal defense, bankruptcy, commercial and residential real estate, civil litigation, social security disability, and personal injury law. The law office of Ritnour, Payne, & Coon, L.L.P. is located at 6500 Holdrege Street, Lincoln, NE, 68505. The firm’s main telephone number is 402-261-3491.

Abrahams Kaslow & Cassman LLP is pleased to announce JENNIFER L. RATTNER has joined the firm as an associate. Ms. Rattner received her Bachelor of Science degree in Psychology, cum laude, from Drake University in Des Moines, Iowa in 2003. She received her Juris Doctor, with high honors, from Drake University Law School in 2008. In law school, Ms. Rattner was a member of

the Drake University Law Review for two years. Ms. Rattner was an associate at another Omaha law firm before joining Abrahams Kaslow & Cassman LLP. She will focus her practice on corporate law, commercial transactions, energy law, intellec-tual property and securities. Ms. Rattner is admitted to practice in Nebraska and Iowa.

KEITh SCARBOROUGh has been reappointed to a three-year term on the Prince William County Electoral Board by the Circuit Court of Prince William County, Virginia. He was first appointed to the Electoral Board in 2007 and is currently serving as Chairman. A native of Grand Island, Scarborough graduated from the University of Nebraska College of Law in 1978. After practicing law in Lincoln, he moved to the Washington, DC area in 1983 to work for former Senator Jim Exon. Scarborough is currently Senior Vice President for Government Relations for the Association of National Advertisers (ANA) in Washington, DC.

Husch Blackwell is pleased to announce that JONAThAN R. BREUNING has joined the firm’s Omaha, Nebraska, office as a Partner in the area of Labor & Employment law. Breuning has more than 30 years of experience representing public and private companies. He has practiced labor and employment law, healthcare law and technology law as in-house counsel and in private practice. Prior to joining the firm, Breuning served as Executive Vice President of Corporate Development and General Counsel for MSI Systems Integrators, Inc. (2005-2010), a national privately-held reseller of computer hardware, software and services. He advised the Executive Committee and Board of Directors and led the legal, human resources, facilities and other administrative support departments. While at MSI, Breuning restructured their HR operation and rede-signed their benefit programs. Breuning began his legal career at Baird Holm LLP (1979-2005), where he served as Chair

transitions

Career Changes....................................................and Relocations

➡

Robert A. Mooney

Jennifer L. Rattner

Jeremy Cross


of their Labor and Employment law department and was a member of the firm’s Executive and Management Committees. Breuning earned his J.D., with honors, from the University of Michigan Law School (1979). He received his B.S., summa cum laude, from Western Michigan University (1976).

Schirber & Wagner, LLP, of 1243 Golden Gate Drive, Papillion, Nebraska, is honored to announce that WILLIAM h. MARION, a 2010 graduate of Creighton University Law School, has joined the firm as an associate.

Abrahams Kaslow & Cassman LLP is pleased to announce LAURA K. WOODS has joined the firm as an associate. Ms. Woods received her Bachelor of Arts degree in Government and International Affairs from Augustana College in South Dakota in 2005. She received her Juris Doctor, cum laude, from Creighton University School of Law

in 2009. In law school, Ms. Woods was a law clerk for the Douglas County Public Defenders office. Ms. Woods worked at another Omaha law firm doing civil litigation before joining Abrahams Kaslow & Cassman LLP. She will focus her practice on litigation and is admitted to practice in Nebraska and Iowa.

Abrahams Kaslow & Cassman LLP is pleased to announce that ROBERT M. SChARTz has become a partner in the firm. Mr. Schartz will focus his practice on Medical Malpractice Defense, Insurance Defense, Commercial Litigation and Personal Injury. Mr. Schartz obtained his Bachelor of Science in Business Administration from the University of Nebraska at Omaha in 1990 with an empha-sis in accounting. After obtaining his Juris Doctor from Creighton University School of Law in 1993, he became an Assistant Douglas County Public Defender where, over the next five years, he gained significant trial experience. In 1998, Mr. Schartz entered private practice where he has continued as a litigator. He is currently a member of the Omaha and

Nebraska State Bar Associations, Iowa State Bar Association, the American Bar Association, the Medical Liability Section of the Defense Research Institute, the Nebraska Defense Counsel Association and the Nebraska Criminal Defense Attorneys Association. Mr. Schartz is admitted to practice in Nebraska and Iowa as well as the U.S. District Court District of Nebraska and the U.S. District Court of the Northern District of Iowa.

Awards and Recognition

Baird Holm LLP is proud to announce SCOTT P. MOORE, a partner with the Firm, has been selected by the Fair Housing Center of Nebraska-Iowa as the recipient of the inaugural “Fair Housing Centers Founders’ Award.” Mr. Moore is being recognized for his service to the Board of Family Housing Advisory Services and his

history of litigation of important fair housing cases at the trial and appellate levels. “We are honoring Mr. Moore for his on-going advice, counsel and general support of the Center,” said Joe Garcia, Director of the Fair Housing Center. Mr. Moore is widely recognized as a national expert in housing law and litigation. He represents individuals, developers, property management companies, nonprofit associations, real estate agents, architects, and engineers in all fair housing and public accommodation matters. Mr. Moore was the Deputy Chief of the Employment Litigation Section of the Civil Rights Division in Washington, D.C. from 2002 to 2003 and is a former senior trial attorney with the Housing and Civil Enforcement Section of the U. S. Department of Justice. While at the Justice Department, he served as lead counsel on some of the largest pattern or practice cases brought by the United States under the Fair Housing Act. Mr. Moore will be honored at a reception on Friday, April 29, at 6 p.m. at the Fair Housing Center. For more information about attending this event, please contact Joe Garcia at [email protected].

AWARDS AND RECOGNITION

Scott P. Moore

Solace Program has First RequestSolace stands for Support of Lawyers/Legal Personnel All

Concern Encourage. The purpose of the program was demon-strated by our inaugural request. A request was received from a legal assistant in Southeast Nebraska, recently diagnosed with stage four pancreatic cancer. She is a single mom, with two grade school age children.

The request for assistance went out via our Solace email list. The response was immediate and nearly overwhelming. The offers of assistance came primarily from Nebraska, but included offers from Nebraska licensed members from California to

Florida. As a result of the response, our legal assistant has found support during her treatment and a trip was arranged for the family to travel to Disney World for a memorable vacation.

Thank you to all who considered this request for assistance. Please consider encouraging others with a need for assistance to utilize this powerful network. All inquiries must be made to Mike Kinney or Jane Schoenike at [email protected] or [email protected].

Assistance provided to a Solace request may or may not be deduct-ible as a charitable contribution. You may consult your tax profes-sional for further information.

Laura K. Woods

Robert M. Schartz


in memoriam

ROBERT “BOB” h. BERKShIRE, 82, died February 9th, 2011 in Omaha. The longtime Omaha lawyer was active in the Nebraska State Bar Association, as well as the Nebraska State Bar Foundation, having just recently completed a two year term as president of the foundation where he also was a fellow. He loved to travel and he and his family typically took trips once or twice a year. His

son, Rick, is also a partner at the Berkshire and Burmeister law firm and said that his father never stopped coming to the office. His daughter, Laurie Meyers, is also a partner at the firm. Bob and his wife Joanne established an endowment fund to support NSBF programs such as the mock trial program and other law-related education programs. He attended the University of Nebraska an participated in track while a student there, later graduating from the University of Nebraska College of Law in 1955 and began private practice in Lincoln. By 1957, Berkshire was a U.S. assistant district attorney in Omaha. He returned to private practice in 1961 in Omaha.. A native of Omaha, he served on the Westside Community Schools’ board from 1972 - 1984, twice as its president. He was a Colonel in

the United States Marine Corps Reserves, and was a trustee of the University of Nebraska Foundation. In 2010, he was recog-nized by the Nebraska State Bar Association and was awarded the George H. Turner Award for his “unusal efforts dedicated to furthering public understanding of the legal system, the administration of justice, and confidence in the legal system.” He also was a 50-year member of the Downtown Kiwanis Club. He is survived by his wife of 57 years, Joanne, son Rick Berkshire, daughters Laurie Meyers, Janet Berkshire, Leslie Berkshire, and six grandchildren. Memorials are suggested to the Omaha Community Playhouse, and the University of Nebraska Foundation’s Dave Noble Memorial Scholarship.

The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation P.O. Box 95103 Lincoln, NE 68509-5103.

Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact [email protected]. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this impor-tant information with your colleagues.

Robert H. Berkshire


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BEACh hoUSE FoR RENT: Nebraska bar member has southwest Florida beach house and brand new 3BR/2BA luxury beach condos for rent. See englewoodbeachhouse.com. Attorney discounts. Contact Lee Hollis 913-385-5400 or email [email protected]. (1211)

ASSoCIATE oR oFFICE ShARE: We are currently looking for attorneys with an established client base to join our Omaha firm. Position is perfect for a solo practitioner that wants to enjoy the support of a firm. We would also consider an office share arrangement. Rent is negotiable and includes internet, reception, conference room and printer/copier. Please email with any questions: [email protected]. (UFN)

oFFICE ShARE ARRANGEmENT: Available in down-town Omaha for up to two attorneys. Includes considerable common space including two large conference rooms, break-room, receptionist services, copier, fax and phones. Located next to the Douglas County Courthouse and offering upscale amenities, this office sharing arrangement is ideal for a solo practitioner. Cross referrals available. Please contact Matt Higgins or Tara Clay at 402-933-7600 or [email protected] or [email protected]. (UFN)

oFFICE SPACE To ShARE, on the second floor of the Keeline Building (directly across 17th Street from the east side of the Douglas County Court House). Roger R. Holthaus; Holthaus Law Offices; Suite 210; 319 South 17th St.; Omaha, NE 68102; phone (402) 341-5095; Fax (402) 341-5378; [email protected]. (UFN)

oFFICE SPACE To ShARE, available for up to two attorneys. Includes common space, parking, large confer-ence room, break room, furnished secretary area, file storage, receptionist services, copier, fax, phone, and internet. Cross referrals possible. Located at 1517 North Cotner Blvd., Lincoln, NE. Please contact Frank Miner at (402) 423-4417 or [email protected]. (0411)

oFFICE ShARE/ATToRNEY ARRANGEmENT-Available for up to 4 attorneys. Includes parking, large confer-ence room, break room, secretarial area, storage, phone system, high speed internet and other detailed amenities and arrange-ments including staff possible. Beautiful new office building located just south of 75th and Pacific Streets. Contact Angela Burmeister or Rick Berkshire, 1301 S. 75th St. Omaha, NE 68124 [email protected].

PURChASE oF BUSINESS: We have an out of state client who is interested in returning to Nebraska and purchasing a small business, preferably one related to agri-business, com-mercial equipment, wholesale supply or manufacturing. If you

have a client who might be interested in selling, please contact Don Buresh, at Stalnaker, Becker & Buresh, P.C., 1111 North 102nd Court, Suite 330, Omaha, Nebraska, (402) 393-5421, [email protected]. (0411)

LAw PRACTICE FoR SALE: Only Attorney in town. Attorney provides services in Estate Planning, Wills, Deeds, Trusts, Real Estate, and corporate formations. Other areas of law can be added. The building is included with the sale price. Two hours from Omaha metro. Current owner will work with Buyer as much and as long as needed to ensure transfer of clients. Current Owner Nets over $250,000 per year. For more information, call Jeff @ 402-827-3190. (0411)

APPELLATE BRIEF-wRITING: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com. (UFN)

wANTED To PURChASE - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or [email protected]. (UFN)

LINCoLNLAwYER.Com Exclusive, intuitive & descrip-tive internet domain LincolnLawyer.com (includes website optimized for mobile devices) starting at $189 per month. Contact Brian Leonard (503)504-3878. (0411)

ESTABLIShED, AV-RATED LINCoLN LAw FIRm with statewide and regional client base seeks associate attorney with experience in litigation and corporate/commercial law. Excellent career opportunity. Must be licensed and admitted in Nebraska state and federal courts. Competitive salary based upon experience. Benefits include health and disability insur-ance, 401(k) match, professional dues and continuing legal education. References required with cover letter and resume. All inquiries will be held in strict confidence. Send inquiries to: Managing Partner, PO Box 94646, Lincoln, Nebraska 68509 4646. (0411)

ATToRNEY - Medium sized AV rated Lincoln, Nebraska law firm seeks attorney with at least 2-5 years’ experience. Some established client base preferred. We are a general prac-tice firm with emphasis in litigation, both civil and criminal. All applications will be treated with strict confidentiality. Send cover letter & resume to: Law Firm, PO Box 82263, Lincoln, NE 68501-2263. (0411)


SEEKING AN ASSoCIATE - Huston and Higgins law firm in Grand Island, NE is seeking an associate with 1-3 years experience and interest in future partnership. Please sub-mit resume and letter of interest to David Huston at [email protected]. (0411)

SEEKING AN ATToRNEY: Prominent mid-sized Omaha law firm is seeking an attorney with 2-5 years experience in litigation. Competitive salary, benefits package. Please submit your resume and references to [email protected]. Pansing Hogan Ernst & Bachman LLP, 10250 Regency Circle, #300, Omaha, Nebraska 68114, http://www.pheblaw.com. (0411)

ChALoUPKA hoLYoKE SNYDER ChALoUPKA LoNGoRIA & KIShIYAmA is seeking an associate attor-ney to handle general business litigation and domestic relations work. We prefer a candidate with some experience who has ties to western Nebraska and/or a real desire to live in a small community. We are an AV-rated law firm whose partners work hard for an exceptional base of long-time and new clients. Our lawyers have been partners and close friends for many years. We are committed to providing a hospitable environ-

ment for lawyers who wish to raise families in, and be part of the growth of, in a thriving small community. We offer a competitive salary, excellent benefits and excellent staff sup-port. Western Nebraska is a great location for hunting, fishing, hiking, motorcycles, and golfing as well as theater and the arts; the western Nebraska legal community is busy, friendly and an integral part of the business community. Please send resume to Post Office Box 2424, Scottsbluff, NE 69363-2424, attn: Hiring Partner.

ESTABLIShED, AV-RATED LINCoLN LAw FIRm seeks attorney with estate planning, probate, real estate and commercial practice to enhance existing practice areas. The Firm maintains a statewide practice and technology that would complement the lateral transfer of any successful metropolitan or rural practitioner. Excellent career opportunity. Must be licensed and admitted in Nebraska state and federal courts. Competitive salary based upon experience. Benefits include health and disability insurance, 401(k) match, professional dues and continuing legal education. All inquiries will be held in strict confidence. Send inquiries to: Managing Partner, PO Box 94646, Lincoln, Nebraska 68509-4646. (0411)

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THE NEBRASKA STATE BAR ASSOCIATION NEBRASKA LAWYERS FOUNDATION (NLF)

Presents the

8TH ANNUAL GREATERNEBRASKA GOLF SCRAMBLE

FRIDAY, JUNE 17, 2011The PRAIRIE CLUBValentine, NE 69201

888-402-1101

Room Reservations and Additional Golf Outings!

Thursday, June 16th or Saturday, June 18th

To make room reservations or tee times on Thursday, June 16th or Saturday, June 18th please call thePrairie Club at 888-402-1101.

Golf ScrambleFriday, June 17th

Format: 4-Person ScrambleLunch & Driving Range: 10:30 AM - NoonShotgun Start: NoonDinner: 5:00 PMEntry Fee: $150 per golferIncludes: Lunch, dinner, green fee, cart, range balls, and door prize drawings!Players: Pairings will be made for individual and partial team entries.

Proceeds to Benefit The NSBA Volunteer Lawyers ProjectI am unable to play in the tournament, but have enclosed $________ to support VLP.

For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091, or at [email protected]. Please make your checks payable to NLF & return this form to: PO Box 81809, Lincoln, NE 68501-1809.***Gifts to NLF are deductible as charitable donations to the extent allowed by law.***

1) _______________________________________ Name

_______________________________________ Address

_______________________________________

__________________________________________ Phone


3) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


2) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


4) _______________________________________ Name

_______________________________________ Address

_______________________________________

_______________________________________ Phone


Directions: The Prairie Club is located 17 miles South of Valentine on HWY 97


2011 Public Service AwardsThe Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2011 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 23, 2011.

George H. Turner AwardThe George H. Turner award originated in 1964 and was established to recognize a member of the bar demonstrating unusual effort in furthering public understanding of the legal system, the administration of justice, and confidence in the legal profession.

Award of Appreciation The Award of Appreciation is awarded to an individual or organization in recognition of outstanding public service creating a better public understanding of the legal profession and the administration of justice.

Award of Special MeritThe Award of Special Merit originated in 1973 and was established to recognize an individual or organization for services advancing the legal profession, the administration of justice and the public interest.

A listing of past award winners in each of these

categories is included in this section.


George H. Turner Award Year Recipient 2010 Robert H. Berkshire 2009 Douglas J. Stratton Gerald L. Soucie 2008 John V. Hendry 2007 D. Milo Mumgaard 2006 Honorable Lyle E. Strom 2005 James Hewitt 2004 Honorable Thomas M. Shanahan 2003 Kevin L. Ruser 2002 Honorable Robert O. Hippe 2001 Roberta S. Stick 2000 Honorable James M. Murphy 1999 James E. Gordon 1998 Kim M. Robak 1997 Robert W. Mullin 1996 Michael D. Gooch 1995 Albert T. Reddish 1994 Indigent Defense Task Force 1993 Howard P. Olsen Jr. 1992 James M. Bausch 1991 Honorable William C. Hastings 1990 Honorable Gerald E. Rouse 1989 Ronald Volkmer 1988 Harvey S. Perlman 1987 Honorable Norman M. Krivosha 1986 Bennett G. Hornstein 1985 Thomas J. Walsh 1984 Honorable Lyle C. Winkle 1983 Robert M. Spire 1982 John M. Gradwohl 1981 Honorable Herbert A. Ronin 1980 Thomas R. Burke 1979 Daniel D. Jewell 1978 Thomas W. Tye 1977 David Dow 1975 Bert L. Overcash 1974 Jack W. Marer 1972 Seymour L. Smith 1971 Herman Ginsburg 1970 Honorable Paul J. Hickman 1969 Senator Roman L. Hruska 1968 Honorable Edward F. Carter 1966 George B. Hastings 1965 Clarence A. Davis 1964 Raymond G. Young

Award of Special Merit Year Recipient

2010 Secretary of State John Gale Attorney General Jon Bruning 2009 Dean Patrick J. Borchers Dean Steven L. Willborn 2008 John P. Lenich 2007 Robert Bartle 2006 Roger W. Kirst 2005 Honorable Alan L. Brodbeck 2004 David S. Houghton 2003 John B. Milligan 2002 Douglas A. Kristensen 2001 Jay J. Sullivan 2000 Omaha Law League 1999 Dennis R. Keefe 1998 Mid-American Council Juvenile Diversion Program Nebraska Court Appointed Special Advocate (CASA) Association 1997 Richard C. Witt 1996 Honorable Richard D. Sievers 1994 John R. Doyle 1993 Charles W. Baskins 1992 Kathleen M. Severens 1991 Robert G, Scoville 1990 Honorable Janice L. Gradwohl Honorable Robert Van Pelt 1989 Honorable W.W. Nuernberger 1988 Legal Services of S.E. Nebraska, Inc. Omaha Legal Aid Society, Inc. Western Nebraska Legal Services Inc. 1987 Honorable Robert C. McGowan 1985 Richard M. Van Steenberg 1984 Robert J. Kutak 1983 Richard D. Shugrue James W. Hewitt 1982 Vard R. Johnson 1981 Rodney Shkolnick John Strong 1980 Joe R. Seacrest Robert D. Mullin 1979 Robert M. Spire 1978 Leo F. Clinch 1977 Alfred G. Ellick 1976 William J. Baird 1975 Laurens Williams Jack W. Marer 1974 Honorable Robert R. Moran 1973 Murl M. Maupin Lester A. Danielson

Public Service Awards History


Award of Appreciation Year Recipient 2010 Daphne Hyun-Jin Aronson Kenneth M. Wentz III Sherman P. Willis 2008 Deanna Lubken 2007 The Woods Charitable Fund 2006 Riko E. Bishop & Mark J. Young 2005 First National Bank 2004 Lawrence Raful 2003 Ronald R. Volkmer John M. Gradwohl 2002 Lane Foundation 2001 Nebraska Mock Trial Project 2000 Lancaster County Juvenile Court Judges 1999 Alan H. Frank 1998 Linda L. Willard 1997 Eileen Reilly–Buzzello James E. Reisinger 1996 The Omaha World Herald 1995 Jung Nguyen 1994 Nebraska Bankers Association 1993 Dave Thompson,(posthumously) Omaha World Herald 1992 Nebraska Association of Trial Attorneys Nebraska Highway Safety Program 1991 Reta Johnson, Nebraska State Library 1989 Ted Larson, Lincoln Southeast High School National Bicentennial Competition 1988 Eleanor Propp Nebraska Commission for the Hearing Impaired 1987 Kathryn E. Haugstatter, Lincoln Star 1986 Scottsbluff Star Herald 1985 Thomas R. Walsh, Nebraska Department of Education 1984 KFAB Radio, Tom Johnson 1983 Volunteers Intervening for Equity 1982 KETV Television, Gary Nielson 1981 Kearney State College, Brendan McDonald 1980 Gary Kerr, WOWT Television 1979 Nebraska Educational Television, John M. Lewis 1978 Nebraska Commission on Aging, David M. Howard 1977 Ceilia McNamara, Omaha Bar Association 1975 Lincoln Journal, Bill Kreifel 1974 Omaha World Herald, John Taylor

1973 Junior League of Omaha, Omaha Law Wives 1972 Donna Belle Weyers, Secretary of State’s Office 1971 KETV Television, Kenneth James 1970 Maurice H. Sigler, Nebraska Dept. of Corrections 1969 Benjamin Goble, Lincoln Police Department 1968 Nebraska Association of Broadcasters, Paul Jensen 1966 Junior League of Omaha, Mrs. Tyler Gaines 1965 KMTV Television, Owen Saddler 1964 Lincoln Journal News Staff, Gil Savery

Robert M. Spire Pro Bono Award Year Recipient 2011 Ann S. Moshman (Awarded at 2011 Barristers’ Ball) 2010 Susan M. Koenig (Awarded at 2010 Barristers’ Ball) 2009 Alan D. Martin (Awarded at 2009 Barristers’ Ball) 2008 Diane B. Metz 2007 Paul M. Conley 2006 Charles R. Maser 2005 Catherine Mahern 2004 Ralph E. Peppard 2003 John V. Morgan 2002 D. C. “Woody” Bradford, III 2001 Charles A. Nye Stephen A. Scherr 2000 Mary L. Wilson 1999 Mark R. Widell 1998 Martin J. Kushner (posthumously) 1997 Gail S. Perry 1996 Connie Kearney Robert F. Martin 1995 Paul W. Rea 1994 The Marks & Clare Firm 1993 Michael D. Matejka 1992 J. Marvin Weems 1991 Earl D. Ahlschwede 1990 Clark J. Grant 1989 James W. Crampton 1988 James R. Nisley 1987 Paul W. Korslund 1986 David Perlman 1985 John W. Ballew Jr.


2011 Public Service AwardsNomination Form

Please check the award for which you are providing a nomination.

Award of Appreciation Award of Special Merit George H. Turner Award

Name of Nominee(s):

Address:

Please briefly describe the activities and contributions which qualify this candidate as a nominee for the Award.

Please include any other information you believe would be helpful to the committee.

Your name and address

Please return this form by May 23, 2011 to:

NSBA House of Delegates Nominating CommitteePO Box 81809

Lincoln, NE 68501-1809Fax (402) 475-7098

Gregory Garland www.garlandlawpc.com

Garland Law, P. C. 17002 Marcy Street, Suite 130

One Pacific Springs Omaha, NE 68118 402-330-7000

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